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Full text of "North Carolina Register v.7 no. 23 (3/1/1993)"

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NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDER 

PROPOSED RULES 
Agriculture 
Electrical Contractors 

Environment, Health, and Natural Resources 
Human Resources 
Justice 
Labor 
Public Education 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

RECEIVED 

CONTESTED CASE DECISIONS 

MAR n 1993 

ISSUE DATE: March 1, 1993 

LAW LIBRARY 

Volume 7 • Issue 23 • Pages 2547 - 2623 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a monlh and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (38.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 1 508 -2 1.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effecti%'e 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for pubUcation in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONfTENTS 



I. EXECUTIVE ORDER 

Executive Order 2 . . . 



2547 



II. PROPOSED RULES 
Agriculture 

Pesticide Board 2549 

Environment, Health, and 
Natural Resources 

Environmental Management . . . 2567 
Wildlife Resources Commission 2575 

Human Resources 

Blind, Services for the 2551 

Medical Assistance 2552 

Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 2550 

Justice 

Criminal Justice Standards 

Division 2553 

Labor 
OSHA 2564 

Licensing Board 

Electrical Contractors 2585 

Public Education 
Elementary and Secondary .... 2584 

III. RRC OBJECTIONS 2587 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 2591 

V. CONTESTED CASE DECISIONS 

index to AU Decisions 2592 

Text of Selected Decisions 

92 OSP 0750 2595 

92 EHR 0820 2602 

92 ABC 1281 2609 

92 EHR 1757 2614 

VI. CUMULATIVE INDEX 2620 



NORTH CAROLLNA REGISTER 

Publication Schedule 

(Aui^iisl 1992 - Dccemher 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


■^Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


:^ i!e :?!< ^ :i: ::i: ^ 

08/03/92 


07/13/92 


:i: :^ * :^ si: ij: :i: 

07/20/92 


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09/02/92 


ij: ii; i;< H< H< H< H< 

09/20/92 


H< ^ >!<>;« St< ^ :i< 

11/02/92 


08/14/92 


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* TIte "Earliest Effective Date" is computed assuming tliut the agenc\ follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 2 
SMALL BUSINESS COUNCIL 

WHEREAS, the growth and development of 
successful small businesses is essential to the 
economic well-being of our State and Nation; and 

WHEREAS, North Carolina State Government 
agencies administer numerous programs which 
directly affect small businesses, and 

WHEREAS, several state-funded North Carolina 
private, non-profit organizations administer pro- 
grams which support the creation and growth of 
small businesses, and 

WHEREAS, there is no uniform, comprehensive 
structure which allows small business assistance 
programs to participate in the State's decision- 
making process with regard to small business 
development, and 

WHEREAS, coordination and collaboration 
among small business assistance programs is 
essential to an efficient and effective small busi- 
ness support infrastructure, and 

WHEREAS, this administration is committed to 
creating an environment which fosters a world- 
class small business sector; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the constitution and laws of 
North Carolina, IT IS ORDERED: 

Section \^ Establishment. 

The North Carolina Small Business Council is 
established hereby. The Council shall be com- 
posed of the Lieutenant Governor and sixteen 
additional members appointed by the Governor. 
The appointed members shall serve staggered 
three-year terms to begin thus: five of the mem- 
bers shall be appointed to one-year terms, five 
shall be appointed to two-year terms, and six shall 
be appointed to three-year terms. Thereafter, all 
appointments shall be for three-year terms. The 
Lieutenant Governor shall serve as Chair. The 
Secretary of State, Secretary of Commerce, Secre- 
tary of Revenue, Commissioner of Labor, Presi- 
dent of the University of North Carolina System, 
and President of the System of Community Colleg- 
es or their designees shall serve as non-voting, ex- 
officio members. 



Section 2. 



Meetings. 



The Council shall meet at least once each quarter 
and may hold special meetings at any time at the 
call of the Chair or the Governor. 



Section 3. 



Expenses. 



Council members shall receive necessary per 
diem, and travel and subsistence expenses, in 
accordance with North Carolina Law. Funds for 
these expenses shall come from the Department of 
Commerce budget. 



Section 4. 



Purposes. 



The purposes of the Small Business Council are: 

(A) To recommend to the Governor, General 
Assembly, and Economic Development 
Board legislation, programs, and other 
actions required to nurture small business 
growth and development, 

(B) To recommend to the Governor, General 
Assembly, and Economic Development 
Board changes in statutes and regulations, 
including the State tax structure, which 
affect small businesses in North Carolina. 

(C) To foster coordination and collaboration 
among state agencies, and private, non- 
profit organizations involved in small 
business development. 

(D) To identify, together with State agencies, 
the need for small business programs in 
education, training, marketing, funding 
resources, exports, purchasing and con- 
tracts, technology and related areas. 

(E) In collaboration with officials in the 
Departments of Commerce and Transpor- 
tation assigned primary responsibility for 
women and minority business issues, to 
recommend to the Governor and General 
Assembly a coordinated response by state 
agencies to increase the number of wom- 
en-owned and minority-owned business 
starts in North Carolina. 

(F) To plan and conduct annual forums on 
small business development. 

(G) To assist in the creation of a clearing- 
house within state government, responsi- 
ble for providing a coordinated response 
to requests for small business assistance. 

(H) To conduct public hearings and inter- 
views and solicit non-confidential infor- 
mation to effect its other duties. 

Section 5^ Administration. 

The Lieutenant Governor's office and the Depart^ 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2547 



EXECUTIVE ORDER 



ment of Commerce shall provide staff and adminis- 
trative support services for the Council. 

Section 6^ Cooperation. 

It shall be the responsibility of each Cabinet 
Department Secretary to make every reasonable 
effort for his or her department to cooperate with 
the North Carolina Small Business Council to 
carry out the provisions of this Order. 

This Order shall be effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this 1 1th day of February, 1993. 



2548 7:23 NORTH CAROLINA REGISTER March 1, 1993 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

Notice is hereby given in accordance with G.S. 

150B-21.2 that the North Carolina Pesticide Board 

intends to repeal rules cited as 2 NCAC 9L . 1801 - 

. 1804 and adopt rule cited as 2 NCAC 9L . 1805. 

1 he proposed effective date of this action is July 
1, 1993. 

1 he public hearings will be conducted: 

March 16, 1993 

7:00 p.m. 

Guilford Co. Coop. Extension Service 

Auditorium, Agricultural Center 

3309 Burlington Road 

Greensboro, North Carolina 

March 18. 1993 

7:00 p.m. 
Western Agricultural Center 

Livestock Building 

1301 Fanning Bridge Road 

Fletcher, North Carolina 

March 22. 1993 

7:00 p.m. 
Lenoir Co. Coop. Extension Service 

Auditorium 

2026 Pink Hill Highway (Hwy. 11) 

Kinston, North Carolina 

Keason for Proposed Action: 

2 NCAC 9L .1801 - .1804 - Tlie rule to he adopt- 
ed by reference supersedes and replaces existing 
state rules. 

2 NCAC 9L .1805 - To adopt by reference Part 
170 of Title 40 of the Code of Federal Regulations 
entitled "Worker Protection Standard. " 

(comment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearings or in writing prior to the hearings 
by mail addressed to John L. Smith. Secretary. 
North Carolina Pesticide Board. P. O. Box 27647. 
Raleigh, NC 27611. 



CHAPTER 9 - FOOD AND DRUG 
PROTECTION DIVISION 



SUBCHAPTER 9L - PESTICIDE SECTION 

SECTION .1800 - WORKER PROTECTION 

STANDARDS FOR AGRICULTURAL 

PESTICIDES 

.1801 DEFINITIONS 

(a) The term "reentry time" moans the period of 
time immediately following the applieation of n 
pesticide to a field when unprotected — worker s 
should not enter as provided for in Rule .1803 of 
this Section. 

(b) Th e term "farm worker" or "worlccr" moans 
any person or per s on s engaged in agricultural hand 
labor in the field. 



^fieW^ 



treated land 



fe) — The term Tield means any 
area, or part thereof, upon which one or more 
pesticides are used for agricultural purposes. 

(d) The term "protective clothing" moans cloth 
ing which i s used to protect the human body from 
contact with pesticide s . — Protective clothing in - 
cludes as a minimum, but i s not limited to. clean 
outer clothing s uch as a hat or other suitable head 
covering, a long sleeved shirt, and long legged 
trou s ers or a coverall type garment (all of closely 
woven fabric covering the body, including arms 
and leg s ), s hoe s , and s ock s . 

(^) — "Toxicity Category 1 Pe s ticide s " mean s any 
pe s ticide products which are required to di s play 
the signal word "DANGER" prominently on the 
tebelv 



Statutory' Authority G.S. 143-458(a). 

.1802 WARNINGS 

When workers are rea s onably expected to be 
entering a field treated with a pesticide for which 
the reentry time has not expired, appropriate and 
timely warning to such workei s shall be given by 
the person directly s upervising the farm worker s . 
The warning may be given orally or by po s ting 
warning s igns at the usual points of entrance to the 
field, or on bulletin board at points where the 
workers usually assemble for instructions. Where 
the person directly s upervising the farm workers 
has reason to believe that a farm worker is unable 
to read, he shall give the farm worker oral warn 
ing and make reasonable effort to en s ure under 

standing — of s uch — warning. When — the — per s on 

directly s upervi s ing the farm workers has reason to 
beli e v e that a farm worker is unable to under s tand 
the English language, warnings s hall be given in 
appropriate — language s — other — tten — the — English 

language. Warning s shall be given in such a 

manner as to inform wo i kers of the following: 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2549 



PROPOSED RULES 



m The type or de s cription of protective 

clothing; 

i3r) The type of pe s ticide applied; 

0j Time and date of the mo s t recent applica 

i4j This — period of time the area or field 

s hould not be entered without appropriate 
protective clothing; and 

iSj The action s to take in the event of acci 

dental exposure. 
Posted warning s shall be clearly vi s ible at a di s 
tance of 25 feet and shall be of such durability and 
construction that they v»'ill remain clearly legible 
for the duration of the reentry time. 



mechanical means and in accordance with 
labeling directions and restrictions. 

Statutory Authority G.S. 143-458(a). 

.1805 ADOPTION BY REFERENCE 

The North Carolina Pesticide Board hereby 
adopts by reference, including subsequent amend- 
ments. Part no of Title 40 of the Code of Federal 
Regulations, entitled "Worker Protection Stan- 
dard." Copies of this material may be obtained 
from the U.S. Government Printing Office. Wash- 
ington. D.C. 20402. at a cost determined by that 
office. 



Statutory' Authority- G.S. 143-458(a). 



Statutory Authority G.S. 143-458(a). 



.1803 REENTRY TIMES 

(a) Unless exempted from such requirements, or 
a — longer reentry — time — has — been — a ss igned to — a 
pesticide by the label or by the s e Regulations, the 
reentry time for a pesticide shall be that period of 
time required for spray s to dry or du s ts to settle. 

(b) Pesticides classified as EPA Toxicity Catego 
ry I pesticide s s hall hax'c a reentry time of at least 
2 4 hours, except as otherwise provided in this 
Rttter 

(c) Pesticides containing ethyl parathion. methyl 
parathion, — demeton, — Azodrin. — carbophenothion, 
Metasystox R. — Bidrin. — or endrin — sfeaH — have a 
reentry time of at least 4 8 hours, except as other 
wise provided in these Rules. 

fd-) — If the label for a pesticide bear s restriction s 
again s t v^'orker s entering treated field s vt'hich are 
more s tringent than those set forth in this Rule, the 
label re s triction s s hall apply. 

Statutory Authority G.S. 143-458(a). 

.1804 LABELS AND EXEMPTIONS 

The restrictions set forth in this Section shall not 
apply with respect to: 
H") Mo s quito abatement treatments and relat 

ed public pest control programs; 
f3-) Greenhouse treatments which are applied 

in accordance — w+th — labeling directions 

and restrictions; 
{?r) Livestock and other animal treatments 

which arc applied — in accordance — w4tb- 

labeling directions and restrictions; 
{M Treatment of golf cour s es and similar 

non agricultural areas which are applied 

in accordance — with — labeling directions 

and re s triction s ; 
{%) Application s incorporated in the soil by 



TITLE 10 - DEPARTME>rr OF 
HUMAN RESOURCES 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health. 
Developmental Disabilities and Substance Abuse 
Services intends to amend rules cited as 10 NCAC 
14L .0602. 

1 he proposed effective date of this action is July 
1. 1993. 

1 he public hearing will be conducted at 1:00 
p.m. on May 5, 1993 at the Sheraton Inn. 4501 
Creedmoor Road at Crabtree Valley Mall , Raleigh, 
N.C. 

Iveason for Proposed Action: To clarify' that a 
residential treatment facility serving children and 
adolescents who are mentally ill shall serve no 
more than a total of nine children and adolescents 
at any one time. 

y^onunent Procedures: Any interested person may 
present his comments by oral presentation or by 
submitting a written statement. Persons wishing to 
nuike oral presentations should contact Charlotte 
Tucker, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 N. 
Salisbury: Street, Raleigh, N.C. 27603 (919) 733- 
4774 before May 5 , 1993. Comments submitted as 
a written statement must be sent to the above 
address by May 5, 1993 and ttuist state the rules to 
which the comments are addressed. Time limits 
for oral remarL'i may be imposed by the Conmiis- 



2550 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



sion Chairman. Fiscal information on these rules 
is available from the same address upon request. 

tLditor's Note: This Rule was filed as a tempo- 
rary amendment effective February 8, 1993, for 
a period of 136 days to Expire on July 1, 1993. 

CHAPTER 14 - MENTAL HEALTH: 
GENERAL 

SUBCHAPTER 14L -LICENSURE RULES 
FOR MENTAL HEALTH FACILITIES 

SECTION .0600 - RESIDENTIAL 

TREATMENT FOR CHILDREN AND 

ADOLESCENTS WHO ARE 

MENTALLY ILL 

.0602 CAPACITY 

Each facility shall serve no more than nine 
children and adolescents at any one time. 

Statutory Authority G.S. I22C-26; 143B-147. 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Services for the 
Blind intends to amend rule cited as 10 NCAC 19G 
.0502. 

1 he proposed effective date of this action is June 
1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on March 16, 1993 at the Governor 
Morehead School Campus, Fisher Building 
Conference Room, 309 Ashe Avenue, Raleigh, NC 
27606. 

Ixeason for Proposed Action: To increase 
training opportunities for vending stand operators 
with visual impairments. . 

{comment Procedures: Any interested person may 
present his/her comments either in writing at the 
hearing or orally at the hearing. Any person may 
request information, permission to be heard, or 
copies of the proposed regulations, by writing or 
calling Herman Gruber, Div. of Services for the 
Blind, 309 Ashe Ave., Raleigh, NC 27606, 733- 



9822. 



CHAPTER 19 - SERVICES FOR THE 
BLEVD 

SUBCHAPTER 19G - VOCATIONAL 
REHABILITATION 

SECTION .0500 - ECONOMIC NEED 

.0502 ECONOMIC NEEDS POLICIES 

(a) The Services for the Blind will establish 
economic need for each client either simultaneous- 
ly with or within a reasonable time prior to the 
provision of those services for which the division 
requires a needs test. This needs test is in accor- 
dance with S.L. 1989, c. 500, s. 43. 

(b) The Division of Services for the Blind will 
furnish the following services not conditioned on 
economic need: 

(1) evaluation of rehabilitation potential 
(including diagnostic and related servic- 
es); 

(2) counseling, guidance, and referral; 

(3) tuition and supplies for publicly operat- 
ed sheltered workshops; 

(4) tuition and fees; 

(5) interpreter services for the deaf; 

(6) reader services, rehabilitation teaching 
services, and orientation and mobility 
services for the blind; 

(7) recruitment and training services to 
provide new employment opportunities 
in rehabilitation, health, welfare, public 
safety, law enforcement and other 
appropriate public service employment; 

(8) placement in suitable employment; 

(9) DSB Rehabilitation Center services 
including transportation and training 
supplies contingent on an individual's 
participation in the center program; 

(10) extended evaluation services; 

(11) diagnostic transportation; 

(12) on the job training; 

(13) training and associated maintenance and 
transportation costs for Business Enter- 
prises Program Trainees; 

( 14) upward mobility training and associated 
maintenance and transportation costs for 
Business Enterprises Program Trainees; 
and 

f+^ (15) equipment and initial stocks and 
supplies for state owned (Randolph- 
Sheppard) vending stands. 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2551 



PROPOSED RULES 



(c) The follov\'ing ser\'ices will be provided by 
the Division of Services for the blind and 
conditioned on economic need: 

(1) Physical and mental restoration services 
(medical services other than diagnostic): 

(2) maintenance; 

(3) transportation, except where necessary 
in connection with determination of 
eligibilitv or nature and scope of 
services; 

(4) ser\ices to members of a handicapped 
individual's family necessary to the 
adjustment or rehabilitation of the 
handicapped individual; 

(5) telecommunications, sensory, and other 
technological aids and devices; 

(6) post-employment services necessary to 
assist handicapped individuals to 
maintain suitable employment except 
for those services not conditioned on 
economic need listed in (b) of this 
Rule; 

(7) occupational licenses; 

(8) tools, equipment, and initial stocks 
(including li\estock) and supplies; and 
necessary shelters in connection with 
the foregoing items; 

(9) expenditures for short periods of 
medical care for acute conditions 
arising during the course of vocational 
rehabilitation, which, if not cared for. 
will constitute a hazard to the 
achie\'ement of the \ocational 
rehabilitation objective; 

(10) books and other training materials; 

(11) other goods and services not 
contraindicated by the act. which can 
reasonably be expected to benefit a 
handicapped individual in terms of his 
employability. 

(d) The Division of Services for the Blind will 
maintain a v^ritten standard for measuring the 
financial need of clients with respect to normal 
living requirements and for determining their 
financial ability to meet the cost of necessary 
rehabilitation services, and for determining the 
amount of agency supplementation required to 
procure the necessary services. 

(e) The policies will be reasonable and will be 
applied uniformly so that equitable treatment is 
accorded all handicapped individuals in similar 
circumstances. 

Aurhorir^- G.S. 111-28; 34 C.F.R. 361.47. 



>ii<ifii<i<>ii<>i>ii< 



>{!■ >fi ^f >fi ^ ^ ^ 



ly otice is hereby i;iven in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to adopt rule cited as 10 NCAC 
26N .0201. 

1 he proposed effective date of this action is June 
1. 1993. 

Instructions on How to Denuind a Public Hearing 
(must be requested in writing within 15 days of 
notice): 

Written convnents concerning this amendment 
contact Division (f Medical Assistance. 1985 
Unistead Drive. Raleigh. NC 27603 Attn: Clar- 
ence Ervin. .AP.4 Coordinator. 

MXcason for Proposed Action: Ttiis Rule incorpo- 
rates by reference the Standards of Practice for the 
DUR Program. 

K^omment Procedures: Written comments con- 
cerning this amendment must be submitted b\ April 
1, 1993, to: Division of Medical Assistance. 1985 
Umstead Drive. Raleigh. NC 27603 ATTN: Clar- 
ence Ervin. AP.A Coordinator. A fiscal impact 
statement is available upon written request from 
the same address. 

CHAPTER 26 - MEDICAL ASSIST.WCE 

SUBCH.\PTER 26N - DRUG USE REMEW 
BOARD 

SECTION .0200 - PROSPECTI\T DRUG 
REVIEW 

.0201 PATIENT COL'N SEEING 

The rules regarding the prospective DUR as 
established by the NC Board of Pharmacy' at 21 
NCAC 46 .2504 are applicable to Medicaid, which 
is incorporated by reference with subsequent 
amendments. A copy 2 1 NCAC 46 .2504 can he 
obtained from the N.C Board of Pharmacy. 
There js no charge for single copies. 

Statutory .Authority: G. S. 108A-68; Social Security 
Act Section 1927(g). 



2552 



7:23 



\ORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



TITLE 12 - DEPARTMENT OF JUSTICE 

IS otice is hereby given in accordance with G.S. 
150B-21.2 that the Criminal Justice Standards 
Division - Department of Justice intends to amend 
rules cited as 12 NCAC 21 .0101 - .0103, .0202, 
. 0204 - . 0206, . 0208, . 0301 , . 0304 - . 0305; adopt 
rules cited as 12 NCAC 21 .0104. .0203, .0210 - 
.0214. .0306. 

1 he proposed effective date of this action is July 
1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on April 2, 1993 at the Independent Insur- 
ance Agents of North Carolina, Inc.. Basenwnt 
Classroom, 1506 Hillsborough Street, Raleigh, 
North Carolina 27605. 

MXeason for Proposed Actions: Need to meet new 
requirements of Chapter 74E of the General 
Statutes of North Carolina. 

K^omment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
March 1. 1993 to April 2, 1993. Such written 
comments must be delivered or mailed to the 
Criminal Justice Standards Division, P.O. Drawer 
149. Raleigh, N.C 27602-0149. 

tLditor's Note: Tlie agency wishes to adopt a 
new 12 NCAC 21 .0203 and renumber rules 12 
NCAC 21 . 0203 to . 0204; . 0204 to . 0205; . 0205 to 
.0206; .0207 to .0208. 

CHAPTER 2 - OFFICE OF THE 
ATTORNEY GENERAL 

SUBCHAPTER 21 - COMPANY AND 
RAILROAD POLICE 

SECTION .0100 - GENERAL PROVISIONS 

.0101 LOCATION 

The administrative office ef for the commissioning 
of company and railroad police officers and the 
certification of company police agencies is located 
in the office of the Criminal Justice Standards 



Division. Correspondence should be directed to: 

Company Police Administrator 

Criminal Justice Standards Division 

Post Office Drawer 149 

Raleigh, North Carolina 27602 -0149 

Telephone: (919) 733-2530 

Statutory Authority G.S. 74E. 

.0102 PURPOSES 

The purposes of the Attorney General's Office in 
granting company and railroad police commissions 
are: 

afl4 



W- 



to allow those organizations 
tiona described in G.S. 7 4 A 



corpora 
to employ 



individual s who poascss full arroat au 
thority, and 

{2) to raise the level of competence of com 

pany and railroad police by establishing 
minimum standards for obtaining a police 
commi s sion. 

(1) to allow those organizations and corpora- 
tions described in G.S. 74E-2 to apply 
for certification as a company police 
agency; 

(2) to allow those organizations and corpora- 
tions described in G.S. 74E-2 to employ 
individuals commissioned as company 
police officers pursuant to G.S. 74E-6: 
and 

(3) to ensure the integrity, proficiency, and 
competence of company police officers 
and establishing minimum standards for 
obtaining and maintaining both company 
police officer commissions and company 
police agency certifications. 

Statutory Authority G.S. 74E-2; 74E-6. 

.0103 ADMINISTRATIVE STAFF 

The administrative staff responsible for company 
ftftd — railroad police commissions and company 
police agency certifications consists of assigned 
personnel from the Criminal Justice Standards 
Division. The duties of this staff are to carry out 
the policies of the law and regulations herein and 
to actively police the individuals already commis- 
sioned as company police officers to assure com- 
pliance with the law in all respects. 

Statutory Authority' G.S. 74E-4. 

.0104 DEFEVITIONS 

]n addition to any definitions set forth in G.S. 
74E. the following definitions will apply through- 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2553 



PROFOSED RULES 



out this Chapter, unless the context clearly defines 
otherwise: 

( 1 ) "Agency Records" means those records 
specified pursuant to this Subchapter and 
that documentation required to be main- 
tained and compiled under the require- 
ments of G.S. 74E. 

(2) "Badge" means a shield bearing the title 
"Company Police Officer" and the name 
of the agency and the officer's issued 
identification card provided by the Attor- 
ney General which identifies the individu- 
al as a company police officer. 

(3) "Calendar Year" shall be defined solely 
for the purposes of in-service training as 
a period beginning Januan,' i and ending 
on December 3 1 . 

(4) "Ceilification" means: 

(a) company police officers - the authority 
granted by the North Carolina Criminal 
Justice Education and Training Stan- 
dards Commission to those individuals 
who meet the minimum requirements as 
a sworn law enforcement officer pursu- 
ant to Title 12. Chapter 9B of tjie North 
Carolina Administrative Code. 

(b) company police agency ; the authority 
granted by the Attorney General to 
those Company Police agencies who 
meet the minimum requirements estab- 
lished for such agencies pursuant to this 
Chapter. 

(5) "Commission" as it pertains to criminal 
offenses, means a finding by an adminis- 
trati\'e body, pursuant to the provisions 
of G.S. 150B. that a person performed 
the acts necessary to satisfy the elements 
of a specified criminal offense. 

(6) "Commissioned company police officer" 
means those individuals authorized by the 
Company Police Administrator to exer- 
cise all law enforcement powers within 
the constraints provided in G.S. 74E and 
classified as a company police officer 
pursuant to G.S. 74E-6(b). 

(7) "Company Police Administrator" means 
the individual who serves as the head of 
the administrative staff to whom the 
Attorney General designated the authority 
to act upon any company police agency 
commission or company police agency 
certification pursuant to the provisions of 
G.S. 74E and the rules promulgated 
thereunder. Said administrator js respon- 
sible for the individual officer's or 



18) 



(9) 



la) 
(b) 



0) 



ia) 

ibi 

(c) 

031 



(14) 



agency's compliance with the Company 

Police Act. 

"Company Police Agency" means any 

public or private entity, association. 

corporation or company as defined by 

G.S. 74E-2(b). 

"Conviction or convicted" means and 



includes, for the purposes of this 

Chapter, the entry of: 
a plea of guilty; 

a verdict or finding of guilty by a jury, 
judge, magistrate, or other duly 
constituted, established, and recognized 
adjudicating body, tribunal, or official, 
either civilian or military; or 
a plea of no contest, nolo contendere, 
or the equivalent. 

"Department Head" means the chief 

administrator of any company police 



agency. The Department Head is to 
include the Company Police Chief or a 
designee formally appointed m writing by 
the Department Head, who shall hold and 
maintain a commission as a company 
police officer. 

"Felony" means any offense designated a 
felony by the laws, statutes, or 
ordinances of the jurisdiction in which 
the offense occurred. 



( 12) "High School" means a school accredited 
as a high school by: 
the Department or Board of Education 
of the state in which the high school is 



located; or 



the recognized regional accrediting 

body; or 

the state university of the state m which 

the high school [s located. 
"In-Service Training" means any and all 
training as prescribed ij! 12 NCAC 21 
.0202 Vthich must be satisfactorily 
completed by company police officers, in 
accordance with the standards established 
therein, during each full calendar year of 
commissioning as a company police 
officer. 

"Insurance Carrier" means any entity, 
corporation, company or professional 
association as defined m G.S. 58 and 
who is authorized by the North Carolina 
Commissioner of Insurance to do 
business in North Carolina as an 
insurance carrier or underwriter. 



(15) 



'Misdemeanor" means those criminal 



offenses not classified under the laws. 



2554 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



M 



M 



statutes . or ordinances as felonies. 
Misdemeanor offenses are classified by 
the Criminal Justice Education and 
Training Standards Commission. 
"Class A Misdemeanor" means an act 
committed or omitted in violation of 
any common law, duly enacted 
ordinance, criminal statute, or criminal 
traffic code of this state, or any other 
jurisdiction, either civil or military, for 
which the maximum punishment 
allowable for the designated offense 
under the laws, statutes, ordinances of 
the jurisdiction in which the offense 
occurred includes imprisonment for a 
term of not more than six months. 
Specifically excluded from this 
grouping of "Class A misdemeanor" 
criminal offenses are motor vehicle or 
traffic offenses designated as 
misdemeanors under G.S. 20 (Motor 
Vehicles), similar laws of other 



jurisdictions. or 
ordinances of 



duly enacted 
an authorized 



governmental entity with the exception 
of the offense of impaired driving (G.S. 
20-138. 1 ) which expressly included 
herein as a Class A Misdemeanor, if 
the defendant was sentenced under 
punishment level three [G.S. 20-l79(i)1. 
level fourlG.S. 20-l79(i)1. or level five 
[G.S. 20-179(k)1. 

"Class B Misdemeanor" means an act 
committed or omitted In violation of 
any common law, criminal statute, or 

or 
or 



criminal traffic code of this state. 



any other jurisdiction, either civil 
military, for which the maximum 
punishment allowable for the designated 
offense under the laws, statutes, or 



ordinances of the jurisdiction in which 
the offense occurred includes 
imprisonment for a term of more than 
six months but not more than two 
years. Specifically excluded from this 
grouping of "Class B misdemeanor" 
criminal offenses are motor vehicles or 
traffic offenses designated as being 
misdemeanors under G.S. 20 (Motor 
Vehicles) or similar laws of other 
jurisdictions with the following 
exceptions. Class B misdemeanor does 
expressly include, either first or 
subsequent offenses of G.S. 20- 138(a) 
or (b). G.S. 20-139 (persons under 



influence of drugs). G.S. 20-28(b) 
(driving while license permanently 
revoked or permanently suspended). 
and G.S. 20- 1 66 (duty to stop in event 
of accident). TTiis definition further 
includes a violation of G.S. 20-138.1 



£16} 



(impaired driving), if the defendant was 
sentenced under punishment level one 
[G.S. 20-l79(g)1 or punishment level 
two fG.S. 20-l79(h)1 for the offense. 
'Polygraph Examination" means an 



examination requested by the Company 
Police Administrator of all new and 
probationary company police applicants 
during the application process. This 
examination will be conducted by the 
State Bureau of Investigation and the 
results will be forwarded to the Company 
Police Administrator. In addition, the 
Company Police Administrator may 
require that a polygraph examination be 
administered to transfer applicants 
holding general certification or currently 
commissioned company police officers. 
as deemed necessary. 

Statutory Authority G.S. 74E. 

SECTION .0200 - COMMISSIONING 

.0202 MINIMUM STANDARDS FOR 
COMMISSIONING COMPANY 
POLICE 

Persons eligible for a company police 
commission on the basis of their employment as 
prescribed in G.S. 7 4 A 1 74E-4 . must meet the 
following requirements before a Commission 
company police commission will be granted: 

(1) be a legal resident of North Carolina; 
Note: — This Rule docs not apply 

to an applicant who i s employed 
by a railroad company when auoh 
railroad company is engaged in 
interstate trips through thi s State 
and the applicant is employed by 
the railroad company as a railroad 
policeman. 

(2) be a high school graduate or have passed 
the General Educational Development 
Test indicating high school equivalency; 
A specific exception to this educational 
requirement is granted to: 

(a) an applicant who was the holder of a 
valid company police commission on 
June 30. 1972; or 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2555 



PROPOSED RULES 



(b) an applicant properly certified as a law 
enforcement officer by the Criminal 
Justice Education and Training 
Standards Commission on March 14, 
1973. 

In either case, the exception will not be 
applicable if the applicant has had more 
than a 12 month break in service; 

(3) have attained a score of not less than 80 
percent on a written examination of basic 
knowledge of laws of arrest, search, and 
investigation, and of these Rules to be 
administered by a representative of the 
North Carolina Department of Justice; 

Note: All examination questions 
will be based on the book Arrest, 
Search, and Investigation which is 
as published by and available 
from the Institute of Government, 
the University of North Carolina 
at Chapel Hill, Chapel Hill, 
North Carolina 27514, and these 
Rules. 

Applicants will be advised in writing of 
test dates and sites at least five days prior 
to the examination. In the event an 
applicant fails to successfully complete 
the examination, only one re-test will be 
allowed. Upon an applicant's failure to 
complete the second test, the applicant 
will be ineligible to apply for or receive 
a company police commission for a 
period of one year from the date of the 
second unsuccessful completion; 

(4) meet the minimum standards for state law 
enforcement officers established by the 
North Carolina Criminal Justice 
Education and Training Standards 
Commission, appearing in Title 12, 
Chapter 9 of the North Carolina 
Administrative Code; which Standards 
are hereby adopted incorporated by 
reference, and shall automatically include 
any later amendments and editions of the 
adopted matter as authorized by G. S. 
I50B 1 4 (c) referenced material . 

(5) applicants who do not hold General 
Certification general certification as a law 
enforcement officer issued by the 
Criminal Justice Education and Training 
Standards Division Commission or the 
North Carolina Sheriffs Education and 
Training Standards Commission , must 
submit to and successfully complete a 
polygraph examination administered by 



161 

m 

18) 



the State Bureau of InvestigationT 
be a citizen of the United States: 



be at least 20 years of age; 
have produced a negative result on a drug 
screen administered according to the 
following specifications: 

(a) the drug screen shall be a urine test 
consisting of an initial screening test 
using an immunoassay method and a 
confirmatory test on an initial positive 
test result using a gas chromatography 
mass spectrometry (GC/MS) or other 
reliable initial and confirmatory tests as 
may, from time to time, be authorized 
or mandated by the Department of 
Health and Human Services for Federal 
Workplace Drug Testing Programs: 

(b) a chain of custody shall be maintained 
on the specimen from collection to the 
eventual discarding of the specimen: 

(c) the drugs whose use shall be tested for 
shall include at least cannabis, cocaine, ~ 
phencyclidine (PCP). opiates and 
amphetamines or their metabolites: 
the test threshold values established by 
the Department of Health and Human 
Services for Federal Workplace Drug 
Testing Programs are hereby 
incorporated by reference, and shall 
automatically include any later 
amendments and editions of the 
referenced material; 



(d) 



(ej 



m 



is) 



m 



the test conducted shall be not more 
than 60 days old, calculated from the 
time when the laboratory reports the 
results to the date of employment: 
the laboratory conducting the test must 
be certified for federal workplace drug 
testing programs, and must adhere to 
applicable federal rules, regulations and 
guidelines pertaining to the handling, 
testing, storage and preservation of 
samples, except that individual agencies 
may specify other drugs to be tested for 
in addition to those drugs set out in 
Item (8) of this Rule: and 
every agency head shall be responsible 
for making adequate arrangements for 
the services of a Medical Review 
officer (MRO) for the purpose of 
review of drug tests reported by the 
laboratory and such officer shall be a 
licensed physician: 
notify the Company Police Administrator 
in writing of all criminal offenses for 



2556 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



which the officer is arrested, pleads no 
contest, pleads guilty, or is found guilty 
of. This shall include all criminal 
offenses except minor traffic offenses and 
shall specifically include any offense of 
Driving Under the Influence (DUI) or 
Driving While Impaired (DWl). A minor 
traffic offense is defined, for purposes of 
this Item, as an offense where the 
maximum punishment allowable is 60 
days or less. The notifications required 
must specify the nature of the offense, 
the court in which the case was handled 



and the date of the conviction. The 
notifications must be received by the 
Company Police Administrator within 30 
days of the date of the case disposition- 
Officers required to notify the Company 
Police Administrator under this Item shall 
also make the same notification to their 
Department Head within 20 days of the 
date the case was disposed of in court. 
The Department Head, provided he had 
knowledge of the officer's conviction(s), 
shall also notify the Company Police 
Administrator of all criminal convictions 
within 30 days of the date the case was 
disposed of in court. Receipt by the 
Company Police Administrator of a 
single notification, from either the officer 
or the Department Head, js sufficient 
notice for compliance with this Item. 
However, the notification to the 
Company Police Administrator does not 
excuse the officer from making an 
independent notification otherwise 
required by either the Criminal Justice 
Education and Training Standards 
Commission or the Sheriffs' Education 
and Training Standards Commission; 

(10) be of good moral character: 

(11) not having committed or been convicted 
of a crime or crimes as specified in 12 
NCAC 21 .0211(b), such that the 
applicant would be ineligible for 
commissioning as a Company Police 
officer. 

Statutory Authority G.S. 74E-4. 

.0203 APPLICATION FOR COMPANY 
POLICE AGENCY 

Each company police agency shall complete and 
submit to the Company Police Administrator the 
following items and documentation: 



iii 
12} 



13] 



14) 



The £5) 



i6i 



an application form; 

articles of incorporation, partnership 
agreements or other agency originating 
documentation, which specifies the 
agency's law enforcement functions: 
names and addresses for all corporate 
officers, partners and all agents 
associated with the corporation or 
partnership: 

a copy of the company police agency's 
insurance policy, or if self insured, the 
certificate of self insurance (applicable to 
non-public entities only): 
statements indicating the results of a 
criminal history record check on each 
principal or agent of the public or private 
entity, corporation or partnership, 
through the clerk of superior court in 
each county where the individual resided 
or maintained a residence or place of 
business over a five year period prior to 
such application: 

the appropriate fees as required by 12 
NCAC 21 .0206. 



Statutory' Authority G.S. 74E. 



.0303 .0204 APPLICATION FOR 

COMPANY POLICE OFFICER 

ffr) — Each company, agency or in s titution which 
employs — company — police — officer s — shaH — be 
registered with the Company Police Admini s trator. 
In order to be registered, each company, agency or 
in s titution which desires to employ company police 
officer s s hall gi\'e written notice of that intent to 



the Company Police Administrator. Incorporated 
companie s shall also submit copies of their articles 
of incorporation. 

fb) Each — application — fef — a — company — police 

commi s sion shall be submitted to the Company 
Police — Admini s trator — atid — mu s t — contain — the 
following: 

The application for a company police officer 
must contain: 

( 1 ) a written request from the chief executive 
officer Department Head of the company, 
agency or institution requesting that a 
company police commission be issued to 
the applicant^ An oral request will not 
satisfy this requirement : and 

(2) if the applicant holds General 
Certification general certification issued 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission or the North Carolina 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2557 



PROPOSED RULES 



Sheriffs Education and Training 
Standards Commission , the application 
must contain the following: 

(a) ii\j Medical History Statement (Form 
F-1); 

(b) (6) Medical Examination Report 
(Form F-2); 

(c) fG) Two complete fingerprint cards; 

(d) fB) Two recent 1" x 1-1/4" 
( non-polaroid) close-up color 
photographs (not more than three 
months old) ; 

(e) fE) Satisfactory proof of a negative 
drug screen; 

(f) ^-F) Satisfactory proof of sucecsafu! 

completion ©f annual in s ervice 

firearms requalificotion training; all in- 
service training requirements specified 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission, which standards are 
hereby incorporated by reference and 
shall automatically include any later 
amendments and editions of the 
referenced material; 

(g) (^ Authorization for release of 
records (CP-1); 

(h) ^-H) Drug Screen Consent Form 

(CP-2); ©f 
(i) Appropriate fees as specified in 12 

NCAC 21 .0206; 
(i) An appropriate background 

investigation as specified in J_2 NCAC 
21 .0205 (Form F-8); and 
(k) Personal History Statement (Form F-3) 
(not more than three months old); or 
(3) if the applicant does not hold General 
Certification general certification , the 
application must contain the following: 

(a) {Aj Medical History Statement (Form 
F-1); 

(b) (B) Medical Examination Report 
(Form F-2); 

(c) {Gj Personal History Statement (not 
more than three months old). (Form 
F-3); 

(d) {&) Report of Qualification Appraisal 
Interview (Form F-4); 

(e) fE) Proof of High School graduation or 
GED; 

(f) {¥^ Two complete fingeiprint cards; 
(^ (G) Two recent 1" x 1-1/4" 

(non-polaroid) close-up color 
photographs (not more than three 
months old); 



(h) fH) Proof of satisfactory completion of 
a Criminal Justice Education and 
Training Standards Commission 
accredited basic law enforcement 
training course; 

(i) (i) Satisfactory proof of a negative 

drug screen; 

{]] ^ Authorization for Release of 

Records (CP-I); 

(k) (K) Drug Screen Consent Form 
(CP-2)t ; 

(1) Appropriate fees as specified in 12 

NCAC 21 .0206; and 

(m) Background investigation as specified in 
12 NCAC 21 .0205 (Form F-8). 

Statutory Authority G.S. 74E. 

7^304 .0205 BACKGROUND 
INVESTIGATION 

A background inve s tigation of each applicant will 

be conducted by the State Bureau of Investigation. 

An application v^ill be denied upon a finding that 

the applicant: 

t-H committed — s ome act — which — constitutes 

di s hone s ty or fraud; 
fS) committed a crime involving the 

infliction of injury to another person; 
(5-) lack s good moral character, has 

intemperate habits ef — lacks truth, 

honesty, and integrity; 
^4^ committed a felony or some other crime 

involving moral turpitude or involving 

the illegal use, carrying or possession of 

a dangerous weapon; 
{%) made any false statement or gave any 

false information in connection with the 

application. 

(a) Any company police agency contemplating 
the commissioning of an applicant as a company 
police officer shall, prior to employment, complete 
a background investigation on such applicant. The 
investigation shall examine the applicant's 
character traits and habits relevant to performance 
as a company police officer and shall determine 
whether the applicant js of good moral character. 
The investigation shall be submitted to the 
Company Police Administrator utilizing the 
Commission-approved Form F-8 (Summary of 
Background Investigation). 

(b) Prior to the investigation, the applicant shall 
complete a Personal History Statement (Form F-3) 
to provide a basis for the investigation. 

(c) The Department Head shall conduct the 
applicant's background investigation. The 



2558 



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March 1, 1993 



PROPOSED RULES 



Department Head shall document the resuhs of the 
investigation and shall include in the report of 
investigation: 

(1) biographical data; 

(2) family data; 

(3) scholastic data; 

(4) employment data; 

(5) interviews with 



the applicant's 



references; and 
(6) a summary of the Department Head's 
findings and conclusions regarding the 
applicant's moral character. 

(d) The agency may use the method of 
documenting the results of the background 
investigation it deems most appropriate to its 
needs . However, the company police program's 
"Summary of Background Investigation" form 
should be used as a guide for minimum 
information collected and recorded by the 
investigator. 

(e) In the event that an individual applying for 
commission as a company police officer is the 
Department Head, he shall not conduct his own 
background investigation. The investigation must 
be performed by a city or county agency m the 
county where the company police agency has 
residency; or contract with a private investigator. 

Statutory Authority G.S. 74E-4. 

T«305 .0206 FEE 

Upon notification that the application has been 
approved, the applicant shall forward a check in 
the amount of five dollars ($5.00) made out to the 
North Carolina Department of Justice. Criminal 
Ju s tice Standards Division to: 

Director, North Carolina Criminal Ju s tice 
Education and 

Training Standard s Commis s ion 
P.O. Drawer 1 4 9 

Raleigh, North Carolina 27602 

(a) Upon notification that an application for a 
company police agency certification or a company 
police officer commission has been approved, the 
applicant shall forward a certified check or money 
order made out to the North Carolina Department 
of Justice to the: 

Company Police Administrator 
Criminal Justice Standards Division 

Post Office Drawer 149 
Raleigh, North Carolina 27602-0149 

(b) The following fees shall be due and payable 
prior to the issuance of company police agency 
certification or a company police officer 
commission. 



(1) Application for certification as a 
company police agency ; $250.00. 

{2) Annual renewal of certification as a 
company police agency ; $200.00. 

(3) Application for reinstatement of 
certification as a company police 
agency - $1.000.00. 

(4) Application for commission as a 
company police officer ; $100.00. 

(S*) Annual renewal of commission as a 
company police officer z $50.00. 

(6") Application for reinstatement of com- 
mission as a company police officer ; 
$150.00. 

Statutory Authority G.S. 74E-12. 

v#307 .0208 OATH 

Every policeman company police officer so 
appointed shall, before entering upon the duties of 
his office, take and subscribe to the oath provided 
for in G.S. 11-11 before an officer authorized by 
G.S. 1 1-7.1 to administer oaths, and shall forward 
a copy of the executed oath within 10 days of the 
day on which the oath is subscribed to the Compa- 
ny Police Administrator. 

Statutory Authority G.S. 11-11; 74E-4. 

.0210 LIABILITY INSURANCE 

(a) Any applicant for a non-public company 
police agency certification must file with the 
Company Police Administrator, either a copy of 
the liability insurance policy or a certificate of self 
insurance, at the following address: 

Company Police Administrator 

Criminal Justice Standards Division 

Post Office Drawer 149 

Raleigh, North Carolina 27602-0149 

£b) Any notice of cancellation by an insurance 

carrier shall be delivered by certified mail, return 

receipt requested, to the following address: 

Company Police Administrator 

Criminal Justice Standards Division 

Post Office Drawer 149 
Raleigh. North Carolina 27602-0149 

Statutory Authority G.S. 74E-3. 

.0211 SUSPENSION, REVOCATION OR 
DENIAL OF AGENCY 
CERTIFICATION 

(a) A company police agency certification may 
be suspended, revoked or denied upon a finding 
that the agency has: 



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2559 



PROPOSED RULES 



ill 



i3] 
14] 
(5) 
(61 

(Si 

121 



failed to pay any required fees: 
failed to produce or maintain a copy of 
a liability insurance policy or a certifi- 
cate of self insurance; 
failed to meet any of the requirements 
for certification proxided m \2 N'CAC 
21 .0203: 

failed to provide any of the required 
documentation pursuant to 22 NCAC 21 
.0203: 

failure to allow for the reasonable 
inspection of the Company Police agen- 
cy records pursuant to G.S. 74E-4(3): 
failure to ensure compliance by the 
agency's company police officers of any 
and all in-ser\'ice training requirements 
as specified by 12 NCAC 21 .0202: 
failure to submit the required in-service 
training compliance reports as required 
by 12 NCAC 21 .0202: 
failure to submit any and all reports- 
notification or other information re- 
quired or requested by the Company 
Police Administrator: 
knowingly made a material misrepre- 
sentation of any information required 
for certification or commissioning from 
the Company Police Administrator or 
the North Carolina Criminal Justice 
Education and Training Standards Com- 
mission or the North Carolina Sheriffs 
Education and Training Standards Com- 
mission: 

has knowingly and willfully by any 
means of false pretense, deception. 
defraudation. misrepresentation or 
cheating whatsoe\'er. obtained or at- 
tempted to obtain credit, training, cer- 
tification or commissioning from the 
Company Police Administrator of the 
North Carolina Criminal Justice Educa- 
tion and Training Standards Commis- 
sion or the North Carolina Sheriffs 
Education and Training Standards Com- 
mission: 

(11) has aided another in obtaining or at- 
tempting to obtain credit, training, or 
certification from the Company Police 
Administrator, the North Carolina 
Criminal Justice Education and Training 
Standards Commission or the North 
Carolina Sheriffs Education and Train- 
ing Standards Commission by means of 
deceit, fraud or misrepresentation: or 

(12) failure to ensure that any employee not 



10] 



commissioned as a company police 

officer is not violating a prohibition set 

forth in 12 NCAC 21 .0304. 

(b) An agency whose certification has been 

suspended, revoked, or denied may appeal the 

action in accordance with the provisions of G.S. 

150B. 

Suiiiiiory Authority G.S. 74E-4. 

.0212 SUSPENSION, REVOCATION. OR 

DENIAL OF OFFICER CONEVflSSION 

(a) A company police commission shall be 
rcN'oked or denied upon a finding that the officer 
has committed or been convicted of: 

( 1 ) an\' felon\' (unless pardoned by the 

President of the United States or a state 
GoN'ernor): or 

(2) any crime for which the authorized 
punishment could hase been imprison- 
ment for more than two years. 

(b) The Attorney General, or his designee, may 
revoke, suspend, or deny the commission of a 
company police officer v.hen the Company Police 
Administrator finds that the applicant for commis- 
sion or the commissioned company police officer 
has committed or been conxicted of: 



m 



12] 



a crime or unlawful act as defined jn 12 
NCAC 21 .0104(15)(b) as a Class B 
misdemeanor and which occurred after 
the date of initial certification: 



a crime or unlawful act as defined in 12 
NCAC 21 .OI04(l.^)(b) as a Class B 
misdemeanor within a five-year period 
prior to the date of application for 
certification: 

(3) four or more crimes or unlawful acts as 
defined in 12 NCAC 21 .0104( 15Mb) as 
Class B misdemeanors regardless of the 
date of commission or con\'iction: 

(4) four or more crimes or unlauful acts as 
defined in 12 NCAC 21 .0104( 15)(a) as 
a Class A misdemeanor, each of which 
occurred after the date of initial certit'i- 
cation: or 

(5) flour or more crimes or unlawful acts 
as defined in 12 NCAC 21 .0104( 1.5)(a) 
as a Class A misdemeanor except the 
applicant may be certified jf the last 
conviction or commission occurred 
more than two years prior to the date of 
the application for certification. 

(c) In addition, a company police commission 
shall be re\oked or denied upon a t'lnding that the 
officer: 



2560 



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PROPOSED RULES 



(1) lacks good moral character; 

(2) fails to meet any of the required mini- 
mum standards as specified in 12 
NCAC 21 .0202; 

(3) has been terminated from employment 
with the company police agency for 
which the officer is commissioned; 

(4) has committed any act prohibited by 12 
NCAC 21 .0304; or 

(5) termination, suspension, or revocation 
of the certification of the company 
police agency with which the officer is 
commissioned. 

(d) An officer whose certification has been 
suspended, revoked, or denied may appeal the 
action in accordance with the provisions of G.S. 
150B. 

Statutory Authority G.S. 74E-4. 

.0213 PERIOD OF SUSPENSION. 
REVOCATION OR DENIAL 

(a) When the Attorney General, or his designee, 
revokes or denies the Commission of a company 
police officer, the sanction shall-be permanent 
where the cause of sanction is: 

commission or conviction of a felony; 
commission or conviction of a crime 
for which authorized punishment in- 
cluded imprisonment for more than two 
years; or 

the second suspension of an officer's 
commission for any of the causes re- 
quiring a five-year period of suspen- 
sion, 
fb) When the Attorney General, or his designee, 
suspends or denies the commission of a company 
police officer, the period of sanction shall not be 
less than five years. However, the Attorney Gener- 
al, or his designee, may either reduce or suspend 
the period of sanction under 12 NCAC 21 .0212(b) 
or substitute a period of probation In lieu of 
suspension of a commission following an adminis- 
trative hearing, where the cause of sanction is: 

(1) commission or conviction of a crime 
other than those listed in Paragraph (a) 
of this Rule; 

(2) refusal to submit to the applicant or 
lateral transferee drug screen required 
by 12 NCAC 21 .0202(8); 

Cii) production of a positive result on a 
drug screen reported to the Company 
Police Administrator where the positive 
result cannot be explained to the Com- 
pany Police Administrator's satisfac- 



m 

121 



m 



tion; 

(4) material misrepresentation of any infor- 
mation required for company police 
commissioning; 

(5) obtaining, attempting to obtain, aiding 
another person to obtain, or aiding 
another person attempting to obtain 
credit, training or commissioning as a 
company police officer by any means of 
false pretense, deception, defraudation, 
misrepresentation or cheating; or 

(6) failure to make either of the notifica- 
tions as required by 12 NCAC 21 
.0202(9). 

(c) When the Attorney General, or hfs designee, 
suspends or denies the commission of a company 
police officer, the period of sanction shall be for 
an indefinite period, but continuing so long as the 
stated deficiency, infraction, or impairment 
continues to exist, where the cause of sanction is: 

(1) failure to meet or satisfy all basic 
training requirements; 

(2) failure to meet or maintain the 
minimum standards of employment; 

(3') discharge from a criminal justice 
agency for impairment of physical or 
mental capabilities; or 

{At') failure to meet the in-service training 
requirements as prescribed by the North 
Carolina Criminal Justice Education and 
Training Standards Commission. 

Statutory Authority G.S. 74E-4. 

.0214 SUMMARY SUSPENSIONS 

(a) The Company Police Administrator through 
designation by the Attorney General, may 
summarily suspend the commission of the company 
police officer before the commencement of 
proceedings for suspension or revocation of the 
certification when, in the opinion of the Company 
Police Administrator, the public health, safety, or 
welfare requires this emergency action of summary 
suspension. The Company Police Administrator 
has determined that the following conditions 
specifically affect the public health, safety, or 
welfare, and therefore, the Company Police 
Administrator may utilize summai-y suspension 
when: 

(1) the person has committed or been 
convicted of a violation of the criminal 



12] 



code which would require a permanent 
revocation or denial of certification; or 
the commissioned company police 
officer fails to satisfactorily complete 



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2561 



PROPOSED RULES 



the minimum in-service training 
requirements as prescribed in Title 12. 
Chapter 9 of the North Carolina 
Administrative Code. 

(b) A summary suspension shall be effective on 
the date specified in the order of the summary 
suspension or upon the service of the certified 
copy of the order at the last known address of the 
person. whiche\er [s later. The summary 
suspension shall remain in effect during the 
proceedings. 

(c) Upon verbal notification by the Company 
Police Administrator that the company police 
commission of any officer is being summarily 
suspended by written order, the Department Head 
of the company police agency shall take such steps 
as are necessary to ensure that the officer does not 
perform duties requiring a company police 
commission through the Attorney General. 

Statutory Authorit}- G.S. 74E-4; 74E-10. 

SECTION .0300 - CONDUCT OF 
COMMISSIONED POLICEMEN 



.0301 TENURE 

A company police 



officer commission or 



company police agency certification shall remain 
in effect until: 

(1) The Attorney General directs termination; 

(2) The company police officer o mployo< 3 
ceases to be employed a s a police officer 
by a company or in s titution which can 
employ company or railroad police by a 
company police agency ; 

(3) The s urety bond expire s or i s canooUcd; 
The required liability insurance is 
terminated or suspended by the agency's 
insurance carrier; 

(4) The need for a commission no longer 
exists; 

(5) Evidence is presented that the person has 
committed an act which would have 
originally caused denial of the application 
or an act prohibited by Rule .0304 of this 
Section; or 

(6) The Criminal Justice Education and 
Training Standards Commission suspends 
or revokes an officer's certification for 
cause. 

Statutory Authority G.S. 74E-4: 74E-6: 74E-10. 

.0304 PROHIBITED ACTS 

In addition to the prohibited acts set forth else- 



where in these Regulations Rules and in Chapter 
74A 74E . the following acts are prohibited and 
may result in civil or criminal action or both: 

( 1 ) use of excess force while making an 
arrest in the performance of their official 
duties ; 

(2) carrying a concealed weapon except: 

(a) when on his own business property or 
at home; 

(b) when employed as private police by the 
administration or board of trustees of 
afty — public — ©r — private — institution — ©f 
higher education, while acting in the 
discharge of those duties, and while on 
property owned, used, or operated by a 
school, college, or university as a part 
of the education in s titution; and a com- 
pany police officer, while on-duty and 
acting in the discharge of bus official 
duties and while within those property 
jurisdiction limitations specifically set 
forth and described under G.S. 74E-6; 

fe) when employed as railroad police and 

m — the — performance — of their official 
duties; 

(3) activating or operating a red light in or 
on any vehicle in this State unless such 
vehicle is exempted from the provisions 
of G.S. 20-130. Kb); 

(4) activating or operating a blue light in or 
on any vehicle in this State except: 

(a) when operating a motor vehicle used 
primarily by company or railroad police 
in the performance of their official 
duties; aftd 

(b) when in property jurisdiction limitations 
specifically described under G.S. 7 4 A 2 
74E-6 ; or 

■ffr) when in hot pursuit as defined in G.S. 

7 4 A 2; 

(c) when in continuous or immediate pur- 



id] 



(5) 



suit of a person for an offense commit- 
ted upon real property owned by or in 
the possession or control of their em- 
ployer or real property or in the posses- 
sion and control of a person who has 
contracted with the employer to provide 
on-site police security personnel servic- 
es for the property; or 
during the transportation of an arrestee, 
which the company policy agency has 
taken into custody; 
activating or operating a siren when 
operating a any motor vehicle used pri- 
marily by any company or railroad police 



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PROPOSED RULES 



(6) 



(7) 



(a) 
(b) 



agency in the performance of their offi- 
cial duties when ©ff outside of the prop- 
erty jurisdiction limitations specifically 
described under G.S. 7 4 A 2 74E-6 unless 
in h©t immediate and continuous pursuit; 
represent representing in any manner at 
any time that he is a federal, state, coun- 
ty, or municipal law enforcement officer^ 
unless the company police officer is 
dually certified ^ one of the classifica- 
tions listed in this Rule; 
impede impeding traffic, step stopping 
motorists or pedestrians, or in any man- 
ner impose imposing or attempt attempt- 
ing to impose his will upon another 
person as police authority unless: 
he is on the property specifically de- 
scribed under G.S. 7 4 A 2 74E-6 ; or 
in hot pursuit; when in immediate and 
continuous pursuit of any person for an 
offense which occurred within the 



(8) 



19] 



property jurisdiction limitations specifi- 
cally described under G.S. 74E-6; 
ttse using or attempted attempting to use 
©f authority granted under a company 
police commission pursuant to this Sub- 
chapter outside the political boundaries of 
North Carolina;, or 
violating Rule .0306 of this Section. 



Statutory Authority G.S. 74E-4; 74E-6. 

.0305 TRANSFERS 

No individual commissioned as a company &f 
railroad policeman can transfer his company police 
commission from one employing company police 
agency to another. 

Statutory Authority G. S. 74E-4; 74E-6. 

.0306 BADGES, UNIFORMS, VEHICLES 
AND OFFICER IDENTIFICATION 

(a) Badges: 

(1) All company police officers shall, when 
on duty, wear a badge bearing the name 
of the certified company police agency 
and the title of: 

(A) Railroad Police officer; or 

(B) Campus Police Officer; or 

(C) Special Police Officer. 

(2) The badge is to be carried at all times 
by the company police officer. The 
badge shall always be worn in plain 
view, except in situations where the 
officer's weapon is concealed under the 



provisions set forth in Rule .0304 of 
this Section. 
(3) No identification card shall be issued to 
or possessed by any company police 
officer except m the form of identifica- 
tion issued to tlie officer by the Attor- 
ney General . 



(b) Uniforms: 

(1) All company police officers shall, when 
on duty, wear the uniform of the com- 
pany police agency unless directed to 
wear other attire by the Department 
Head. 

(2) When wearing civilian attire, the com- 
pany police officer shall comply with 
12 NCAC 21 .0306(a). 

(3) Those company police agencies which 
employ both company police commis- 
sioned and non-commissioned security 
personnel shall provide the commis- 
sioned company police officers with a 
uniform of a different color that would 
clearly distinguish the company police 
officer from other employees of the 
agency. 

£4} The uniform of the company police 
officer shall bear shoulder patches that 
contain: 

(A) the terms "Railroad Police Officer, " 
"Campus Police Officer," or "Special 
Police Officer"; and 

(B) the name of the company police agen- 
cy, 

(c) Vehicles: 

(1 ) If the company police agency utilizes 
any vehicle bearing any insignia, such 
insignia must clearly designate the 
name of the company police agency and 
the classification of the company police 
officers who will operate this vehicle. 

(2) While such insignia is displayed, the 
Department Head shall ensure that no 
employees non-commissioned as com- 
pany police officers operate the marked 
vehicle. 

(3) The Department Head shall ensure that 
no employee non-commissioned as a 
company police officer operate any 
company police vehicle with a blue 
light contained therein. 

£41 The Department Head shall ensure that 
any vehicle displaying the company 
police agency insignia is not operated 
outside of those property jurisdiction 
limitations set forth in G.S. 74E-6. 



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2563 



PROPOSED RULES 



Statutory Authority G.S. 74E-7. 

TITLE 13 - DEPARTMENT OF 
LABOR 

iS otice is hereby i^ivcn in accordance with G.S. 
150B-21.2 that the Department ofLcihor intends to 
amend rule cited as 13 NCAC 7C . 0102 and repeal 
rules cited as 13 NCAC 7C .0105 
- .0109. 



.0106. .0108 



1 he proposed effective date of this action is June 
I. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on March 16. 1993 at the Dibor Building, 
Room 249. 4 West Edenton Street. Raleigh. North 
Carolina 27601. 

Reason for Proposed Action: 13 NCAC 7C . 0102 
- To clarify the enforceability of 29 CFR 
1926.28(a) as published in 37 Fed. Reg. 27510 
(1972) and adopted by the North Carolina 
Department of Labor on July 1 . 1973. 13 NCAC 
7C .0105 and .0106 - To prevent duplication of 
inspections by OSH.4 and other divisions within the 
Department of Uibor. 13 NCAC 7C .0108 and 
.0109 - Alternative enforcement procedures within 
other State Departments are sufficient. 

l^onvnent Procedures: People wanting to present 
oral testimony at the hearing should provide a 
written sunmiary: of the proposed testimony to the 
department by March 12, 1993. Written comments 
will he accepted until March 31 . 1993. Direct all 
correspondence to Taylor McMillan. NC Depart- 
ment of Dibor. 4 W. Edenton Street. Raleigh. NC 
27601. 

CHAPTER 7 OSHA 

SUBCHAPTER 7C - SAEETY AND HEALTH 

SECTION .0100 - GENERAL INDUSTRY: 
CONSTRUCTION AND AGRICULTURE 

.0102 CONSTRUCTION 

(a) The commissioner has adopted the Occupa- 
tional Safety and Health Regulations for Construc- 
tion, Title 29 of the Code of Federal Regulations 
Part 1926.1-1926.1051 (commonly designated as 
29 CFR 1926), as the same appears in Volume 30 



of the Federal Register 22801-22893 (June 24, 
1974), with the following additions, deletions and 
amendments: 

(1) Flooring requirements--29 CFR 
1926.750, as amended in 39 FR (July 
2, 1974), pages 23460-24361; 

(2) Recodification of air contaminant 
standards-29 CFR 1926.55, as 
amended in 40 FR (May 28, 1975), 
pages 23072-23074; 

(3) Recodification of air contaminant 
standards, correction— 29 CFR 1926, as 
amended in 40 FR (June 3. 1975), page 
23847; 

(4) National Electrical Code (ground fault 
circuit interrupters )-29 CFR 1910.309 
and 29 CFR 1926.400, as amended in 
41 FR (December 21. 1976), pages 
55685-55704; 

(5) National Electrical Code (ground fault 
circuit interrupters); corrections--29 
CFR 1910.309 and 1926.400 as 
amended in 42 FR (January 14, 1977), 
page 2956; 

(6) Marine operations and equipment--29 
CFR 1926.605 as amended in 42 FR 
(July 22, 1977). page 37674; 

(7) Guardrails, handrails and covers. 
addition of a new Paragraph (g)— 29 
CFR 1926.500 as amended in 45 FR 
(November 14. 1980). page 75625 and 
adopted by the North Carolina 
Department of Labor on December 9, 
1980; 

(8) Definitions applicable to 29 CFR 
1926.500. addition of a new Paragraph 
(p)-29 CFR 1926.502 as amended in 
45 FR (November 14, 1980), pages 
75625 through 75626 and adopted by 
the North Carolina Deparlment of 
Labor on December 9, 1980; 

(9) Addition of Appendix A to Subpart M 
for 1926..5CX)(g)(l). Roof Widths-29 
CFR 1926.500(g)(1) as amended in 45 
FR (November 14, 1980), page 75626 
and adopted by the North Carolina 
Department of Labor on December 9. 
1980: 

(10) Revision of 1926.55 as published in 51 
FR (June 20. 1986) page 22756 and 
adopted by the North Carolina 
Department of Labor on July 21. 1986; 

(11) Final rule for asbestos, tremolite, 
anthophyllite, and actinolite (1926.58) 
as published in 51 FR (June 20. 1986) 



2564 



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PROPOSED RULES 



page 22756 and adopted by the North 
Carolina Department of Labor on July 
21, 1986; 

(12) Revision of 1926.151 as published in 
51 FR (July 11, 1986) page 25318 and 
adopted by the North Carolina 
Department of Labor on December 8, 
1986; 

(13) Revision of 1926.449 as published in 
51 FR (July 11, 1986) page 25318 and 
adopted by the North Carolina 
Department of Labor on December 8, 
1986; 

(14) Revision of 1926.351 as published in 
51 FR (July 11, 1986) page 25318 and 
adopted by the North Carolina 
Department of Labor on December 8, 
1986; 

(15) Revision of 1926.803 as published in 

5 1 FR (July 11,1 986) page 253 1 8 and 
adopted by the North Carolina 
Department of Labor on December 8, 
1986; 

(16) Revision of Subpart K of Part 1926 as 
published in 51 FR (July 11, 1986) 
page 25318 and adopted by the North 
Carolina Department of Labor on 
December 8, 1986; 

(17) 1926.550: 

(A) Revision as published in 52 FR 
(September 28, 1987) pages 
36381-36382; 

(B) Revision as published in 53 FR 
(August 2, 1988) pages 29139-29141; 

(C) Redesignation of 1926.550(g)(3)(i)(D) 
to 1926.550(g)(3)(ii)(D) and 
Paragraphs (g)(3)(i)(E) through 
(g)(3)(i)(G)as Paragraphs (g)(3)(i)(D) 
through (g)(3)(i)(F) respectively as 
published at 54 FR (April 18, 1989) 
page 15406; 

(18) Revision of 1926.552 as published in 

52 FR (September 28, 1987) pages 
36381-36382; 

(19) Revision of 1926.903 as published in 

52 FR (September 28, 1987) pages 
36381-36382; 

(20) Revision of 1926.55 as published in 52 
FR (December 4. 1987) page 46312; 

(21) Revision of 1926.700 as published in 

53 FR (June 16, 1988) pages 
22643-22644 and with amendments as 
published in 55 FR (October 18, 1990) 
page 42328; 

(22) Revision of 1926.701 as published in 



53 FR (June 16, 1988) page 22644; 

(23) Revision of 1926.702 as published in 
53 FR (June 16, 1988) page 22644; 

(24) Revision of 1926.703 as published in 
53 FR (June 16, 1988) pages 
22644-22645; 

(25) Revision of 1926.704 as published in 
53 FR (June 16. 1988) page 22645; 

(26) Revision of 1926.705 as published in 
55 FR (October 18, 1990) pages 
42328-42329; 

(27) Revision of 1926.706 as published in 

53 FR (June 16, 1988) page 22646; 

(28) Revision of 1926.58 as published in 53 
FR 35627-35629 (September 14. 1988). 
and corrected in 53 FR (September 23. 
1988) page 37080, amended as follows: 

(A) In Paragraph (o)(l) change the 
effective date from October 14. 1988. 
to March 6, 1989; 

(B) In Paragraph (o)(2) change the action 
date from January 16, 1987, to June 
6, 1989; 

(C) In Paragraph (o)(2)(i) change the 
action date from December 13, 1988, 
to May 6, 1989; 

(D) In Paragraph (o)(2)(ii) change the 
action date from March 13, 1989, to 
August 6, 1989; 

(E) In Paragraph (o)(2)(iii) change the 
action date from September 14, 1989. 
to February 6, 1990; 

(29) Revision of Subpart D of Part 1926 and 
amendment of Part 1926 by the addition 
of 1926.59 as published in 52 FR 
(August 24. 1987) pages 31877-31886; 

(30) Revision of 1926.800 as published in 

54 FR (June 2, 1989) pages 
23823-23857; 

(31) Revision of Subpart P as published in 
54 FR (October 31, 1989) pages 
45959-45991; 

(32) Amendment to 1926.305 as published 
in 55 FR (October 18, 1990) page 
42328; 

(33) Revision and relocation of portions of 
Subpart L and Subpart M to nev\' 
Subpart X as published in 55 FR 
(November 14, 1990) pages 
47687-47691 and amended as published 
in 56 FR (January 23. 1991) page 
2585. 56 FR (February 7. 1991) page 
5061, 56 FR (August 23. 1991) pages 
41793 and 41794; 

(34) Revision of 1926.58 as published in 57 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2565 



PROPOSED RULES 



(35) 



(36) 



37) 



FR (June 8, 1992) pages 24330-24331. 

Revision of Subpart D as published in 

57 FR (August 10, 1992) pages 35681- 

35695. 

Revision of Subpart D as published in 

57 FR (September 14, 1992) pages 

42452-42463. 

1926.28(a) is amended to read as 

follows: (a) The employer [s 

responsible for requiring the wearing of 

appropriate personal protective 

equipment in all operations where there 

is an exposure to hazardous conditions 

or where this part indicates the need for 



using such equipment to reduce the 

hazards to the employees. 
(b) Copies of the standards are available for 
inspection at the offices of the division, and may 
be obtained either from the division or from the 
Federal Register. U.S. Government Printing 
Office, Washington, D.C. 20402. 

Statutory Authority G.S. 95-131. 

.0105 BOILERS AND PRESSURE VESSELS 

fa) — All boilers and pressure vessels shall be 
operated and maintained in accordance with the 
rules set forth in 13 N.C.A.C. 13. 

(b) Copie s of the s e rules may be obtained at the 
office s — of the — divi s ion, — from — tlw — Boiler — etft4 
Pressure Vessel Division, or from the Offic e of 
Administrative Hearings. 

Statutory Authority G.S. 95-131. 

.0106 ELEVATORS AND RELATED 
EQUIPMENT 

fft) — All elevators and related equipment shall be 
operated and maintained in accordance with the 
rules set forth in 13 N.C.A.C. 15. 

(b) Copies of these rules may be obtained at the 
office s of the division, from the Elevator and 
Amusement Device Division, or from the Office of 
Administrative Hearings. 



(1Q91 edition) which is hereby incorporated by 
reference. This incorporation shall not include any 
subsequent amendments or editions of this code. 
Copies of this code may be obtained from the 
Southern Building Code Congress International. 
90G — Montclair — Road, — Birmingham, — Alabama 
35213 1206, for sixty dollars ($60.00). 

(b) The Standard Building Code shall be subject 
to the following modifications: 

fH Section 2 4 02.5. Standby Power. Add 

a — sentence — te — read: "Hydraulic 

elevator s which do not serve more than 
three — floors — shall — be — designed — aftd 
in s talled — w4#i — their — ©wfl — emergency 
power — te — complete — the — lowering 
proce ss ." 

(5) Section 701.1.2, Table 700. Elevator 

shaft enclosure s and elevator machine 
rooms — s hall — have — a — tv»'o hour — fee 
resistive — rating — and — the — opening 
protcctives — shaH — have — a — efie — aftd 
one half hour fire resistive rating. 

0^ Section 2 4 02.6.3. Vent s . Add a 

s entence to read as follows: "Vents 

may be closed v»'hen designed to be 

opened — automatically — tf — a — smoke 

detector and heat detector located at the 

top of the hoi s tvt'ay i s activated." 

fe) — Historic buildings newly occupied a s place s 

of employment after the effective date of this Rule 

s hall be con s tructed, maintained, and occupied in 

accordance with the provisions set out in Sections 

1909 and lOlOof Volume I, General Construction, 

of the North Carolina State Building Code (1991 

Edition), — which — are — hereby — incorporated — by 

reference. Thi s incorporation s hall not include any 

s ub s equent — edition s — of — amendments — te — these 

s ection s . Copie s — of Volume — I — of the — North 

Carolina State Building Code can be obtained from 
the North Carolina Department of Insurance. Code 
Council Section. Post Office Box 26387. Raleigh. 
NC 2761 1, for twenty five dollars ($25.00). 

Statutory- Authorit\' G.S. 95-126: 95-131; 95-136. 



Statutory Authority G.S. 95-131. 

.0108 BUILDING CODE 

(a) Except as specified in Paragraphs (b) and (e) 
of this Rule, all places of employment newly 
occupied after the effective date of this Rule shall 
be — constructed. — maintained. — aftd — occupied — m 
accordance with the s tandard s s et out in Chapter s 
2 through 32 of the Standard Building Code of the 
Southern — Building Code Congress — International 



.0109 FIRE PREVENTION CODE 

All places of employment shall be maintained 
and occupied in accordance with the standards set 
out in Chapters 2 through 4 3 of the Standard Fire 
Prevention Code of the Southern Building Code 
Congress — International — (1991 — edition) — which — is 

hereby — incorporated — by — reference. Thts 

incorporation shall not include any subsequent 
amendments or editions of this code. — Copies of 
this code may be obtained from the Southern 



2566 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



Building — Code — Congrcflg — International. — 99G 

Montclair Road, Birmingham. Alabama 

35213 1206. for forty five dollars ($ 4 5.00). 

Suitulory Authority G.S. 95-126; 95-131 ; 95-136. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

ISIotice is hereby given in accordance with G.S. 150B-21.2 that the EHNR - DEM/Air Quality intends to 
amend rule cited as 15A NCAC 2H .0610. 



1 he proposed effective date of this action is September 1 , 1993. 
1 he public hearing will be conducted: 



March 16, 1993 

7:00 pm 
Groundfloor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, North Carolina 



March 17, 1993 

7:00 pm 

Criminal Superior Court Room 

Old Courtroom Building- 2nd Floor 

130 South Queen Street 

Kinston. North Carolina 



March 24, 1993 

7:00 pm 

Catawba Valley Community College Auditorium 

2550 Highway 70 South East 

Hickory, North Carolina 



Keason far Proposed Action: To integrate the new federal air lo.xic program of nuaimum achievable control 
technology into the current state air toxic program. 

\^omment Procedures: All persons interested in these matters are invited to attend the public hearings. Any 
person desirine to conmient for more than three minutes w requested t_o submit a written statement for 
inclusion i_n the record of proceedings gl the public hearing. Comments are especially sought on when to do 
plant-wide tm>deling for air toxics and how to treat modifications. Tlie hearing record will renuiin open until 
April 26, 1993 to receive additional written statements. 

Comments should be sent to and additional information concerning the hearing or the proposals tnay he 
obtained by ccmtacting: 

Mr. Tltonuis C. Allen 
Division of Environmental Managetnent 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2567 



PROPOSED RULES 



P. O Box 29535 

Raleigh. North Carolina 27626-0535 

(919) 733-1489 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR PERADTS: APPROVALS 

SECTION .0600 - AIR QUALITY PERAUTS 

.0610 PERAUT REQUIREMENTS FOR TOXIC AIR POLLLT.\NTS 

(a) Definitions. For the purposes of this Rule, the following definitions apply: 

( 1 ) "Construction. Reconstruction, or Modification" means any physical change in. or change in the 
method of operation of. a facility which increases the amount of emissions or ambient concentration 
of any pollutant listed m Paragraph (h) of this Rule or which results in the emission of any 
pollutant listed in Paragraph (h) of this Rule not previously emitted. 

(2) "Evaluation" means a determination of ambient air concentrations as described under 15A NCAC 
2D .1106. 

(3) "Existing facility" means any facility that was permitted to construct or was in operation before 
July 1. 1993. 

(4) "MACT" means any maximum achievable control technology emission standard applied to a source 
or facility pursuant to Title III of the 1990 federal Clean Air Act Amendments. 

(5) "Net increase" means the change in representati\'e emissions during consecutis'e periods 
corresponding to the periods contained [n Paragraph (h) of this Rule. Representati\'e emissions 
shall be determined from emissions occurring between Januar\' J_, 1992. and July _L 1993. 

fa)(b) Applicability. No person shall cause or allow any toxic air pollutant named in 15A NCAC 2D . 1 104 
to be emitted into the atmosphere from any source without having received a permit from the commission in 
accordance with the following: 

( 1) New Facilities. Any facility that begins construction after July l^ 1993. and that: 

(A) is required to have a permit because of applicability of Sections in Subchapter 2D of this Chapter 
other than . 1 100 of this Subchapter, except for facilities whose emissions of toxic air pollutants 
only result from combusting only unadulterated fossil fuels or unadulterated wood and associated 
storage of such fuels: or 

(B) has a standard industrial classification (SIC) code that has previously been called under 
Subparagraph (b)(3) of this Rule: 

shall comply with Section . 1 100 of thjs Subchapter before beginning construction or operation- 
shall ha\'e recei\ed a permit to emit toxic air pollutants before beginning construction, except as 
pro\ided in Paragraph (g) or (h). and shall comply v\'ith such permit when beginning operation. 

f+-l Sources and modifications of s ource s which require a permit or permit modification because of the 

applicability of Sections in Subchapter 2D of this Chapter other than Section .1 100 and which 
began construction after April 30. 1990. shall hax'c recei^od a permit or permit modification to omit 
toxic air pollutants before beginning construction and shall be in compliance with their permit when 
beginning operations. 

(2) Facilities with Incinerators. The owner or operator of any incinerator subject to 15A NCAC 2D 
.1200 which began construction or was in operation before October 1. 1991. shall apply for a 
permit or a permit modification to emit toxic air pollutants from the incinerator, including 
associated waste handling and storage, in accordance with the compliance schedules contained in 
ISA NCAC 2D . 1209. All other s ource s at the facility with the incinerator s hall be included, and 
the owner or operator of these sources The owner or operator of the incinerator shall apply for a 
permit or a permit modification to emit toxic air pollutants from aU other these sources at that 
facility in accordance with Paragraph Subparagraph (b)(3) through (6) or (e) of this Rule. 

(3) SIC Calls for Existing Facilities. The owner or operator of an existing facility shall have 180 days 
to apply for a permit or permit modification for the emissions of toxic air pollutants after receis'ing 
written notification from the Director. Such facilities shall comply with 15A NCAC 2D . 1 100 as 
follows: 



2568 7:23 NORTH CAROLINA REGISTER March I, 1993 



PROPOSED RULES 



(A) If it is not known that the source is. or will be. subject to a MACT at the time of notification, 
the source shall comply: 

(i) within three years from the date that the permit is issued if the source does not emit any toxic 
air pollutant m common with any source at the facility subject to MACT. or 

(ii) in accordance with Subparagraph (b)(4) of this Rule if the source emits a toxic air pollutant 
in common with any source at the facility subject to MACT. or 

(B) If it is known that the source is. or will be. subject to a MACT at the time of notification, the 
source shall comply in accordance with Subparagraph (b)(4) of this Rule. 

The Director shall notify facilities subject to this Subparagraph by calling for permit applications on the basis 
of standard industrial classifications, that is. he shall call at one time for permits for all facilities statewide that 
have the same four-digit standard industrial classification code, except those facilities located m certified local 
air pollution control agency areas. All sources, regardless of their standard industrial classification code and 
including sources combusting only unadulterated fossil fuels or unadulterated wood, at the facility shall be 
included in the call for permit applications. All members of a source or facility category not having a 
standard industrial classification code shall similarly be called at ojie time. For categories ot' sources. 
excluding cooling towers, for which rt js known that the Environmental Protection Agency (EPA) has 
scheduled promulgation of a MACT under Section 1 12(e) of the federal Clean Air Act, the Director shall 
notify facilities \n these categories as the EPA promulgates MACT. If the EPA fails to promulgate a MACT 
as scheduled after it has approved the State's Title V permit program, the Director shall notify facilities 18 
months after the missed promulgation date. For categories of sources for which the EPA has not scheduled 
promulgation of a MACT. the Director shall notify all permitted facilities by November 15. 2(300. 

(4) Existing Facilities Subject to MACT. The owner or operator of an existing facility subject to one 
or more MACT. or that may be subject to a MACT based on studies required by Section 1 12 (n)(l) 
of the Clean Air Act. 42 U.S.C. Section 7412 (n)(l). shall submit a permit application to comply 
with Section . 1 100 of this Subchapter at the same time that he submits a permit application to 
comply with the MACT. 

( A) If it is not known that the facility will be subject to more than one MACT when the first MACT 
is applied, i.e.. the facility is subject to a single MACT: 

(i) The permit application shall include an evaluation for all toxic air pollutants covered under 

Rule . 1 104 of this Subchapter for all sources at the facility; and 
(ii) The facility shall comply with the requirements of Section . 1 100 of this Subchapter by the 

same deadline that it is required to comply with the MACT. 

(B) If it is known that the facility is. or will be. subject to more than one MACT when a MACT is 
applied, i.e.. the facility is subject to multiple MACT: 

ii) When the first MACT is applied, the permit application shall include an evaluation for all 
toxic air pollutants covered under Rule . 1 104 of this Subchapter for: 
(I) all sources at the facility not known to be subject to any MACT and that do not emit any 
toxic air pollutants fn common with any subsequent MACT for that facility, and 
(II) the sources at the facility to which the first MACT is applied. 
These sources shall comply with the requirements of Section .1 100 of this Subchapter by the 
compliance date for the first MACT. 
(ii) When a subsequent MACT is applied, the permit application shall include an evaluation for 
all toxic air pollutants covered under Rule .1 104 of this Subchapter for: 
(I) all sources at the facility that have been previously evaluated. 

(Il)the sources at the facility to which this subsequent MACT is applied, and 
(III) all sources at the facility not known to be subject to any MACT and that do not emit any 
toxic air pollutants in common with a MACT for the facility subsequent to this subsequent 
MACT. 
These sources shall comply with the requirements of Section . 1 100 of this Subchapter by the 
compliance date for the subsequent MACT. 

(5) Construction. Reconstruction, or Modification. 

(A) The owner or operator of any facility that has not been subject to an air toxic evaluation pursuant 
to Subparagraph (b)(1). (b)(4)(A) or (b)(6) of this Rule or that has not otherwise been subject to 
a facility-wide air toxic evaluation, shall submit a permit application to comply with 15A NCAC 
2D .1100 if 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2569 



PROPOSED RULES 



ii) Any construction, reconstruction, or modification of the facility, undertaken after July J_^ 
1993 that: 

(I) results in a documented (by the owner or operator of the facility to tlie satisfaction of the 
Director) facility-wide cumulative net increase from July L, 1993, in emissions of any 
toxic air pollutant above the levels contained In Paragraph (h) of the this Rule; and 

(II) is not solely for one or more sources whose emissions of toxic air pollutants only result 
from combusting only unadulterated fossil fuels or unadulterated wood and associated 
storage of such fuels; or 

(ii) The Director finds that the construction, reconstruction, or modification of the facility will 
significantly increase the risk to human health posed by the facility. The Director may require 
the owner or operator of a facility subject to this Subpart to provide a satisfactory analysis 
showing what the resultant emissions and increase of risk to human health from the 
constructed, reconstructed, or modified facility will be. 
The permit application shall include an evaluation for all toxic air pollutants covered under Rule . 1 104 
of this Subchapter emitted by ( 1 ) sources involved in the construction, reconstruction, or modification 
and (2) all other sources at the facility emitting a toxic air pollutant in common with the sources 
involved in the construction, reconstruction, or modification (a) that have previously been evaluated 
under Part (4)(B) of this Paragraph or £bj that are not known to be subject to a MACT or to emit any 
toxic air pollutants in common with any source at that facility that will be subject to a MACT. Sources 
involved in the construction, reconstruction, or modification and any other source emitting a pollutant 
in common with the sources involved in the construction, reconstruction, or modification that have 
previously been evaluated under Part (4)(B) of this Paragraph or that are not known to be subject to 
a MACT or to emit any toxic air pollutants m common with any source at that facility that will be 
subject to a MACT shall comply with Section . 1 100 of this Subchapter before operation of the 
constructed, reconstructed, or modified sources begins. 

(B) Any facility that has been subject to an air toxic evaluation under Subparagraph (b)(1). (b)(4)(A), 
or (b)(6) of this Rule or has otherwise been subject to a facility-wide air toxic evaluation shall 
submit a permit application to comply with 1.5 A NCAC 2D . 1 1(X) If 

(i) Any construction, reconstruction, or modification of the facility undertaken after July f, 1993 
results in a net increase in emissions of any toxic air pollutant, including emissions from all 
sources at the facility; or 

(ii) The Director finds that the construction, reconstruction, or modification of the facility will 
significantly increase the risk to human health posed by the facility. The Director may 
require the owner or operator of a facility subject to this Part to provide a satisfactory 
analysis showing what the resultant emissions and increase to human health from the 
constructed, reconstructed, or modified facility will be. 

The permit application shall include an evaluation of aU changes affecting compliance since 
the previous air toxic evaluation for all toxic air pollutants covered under Rule . 1 104 of this 
Subchapter emitted by all sources at the facility. The facility shall comply with Section . 1 100 
of this Subchapter before operation of the constructed, reconstructed, or modified sources 
begins. 

( C) Facilities that should have applied for a permit to emit toxic air pollutants between May 1 , 1990. 
and July J^ 1993. inclusively, but failed to do sch, shall be included under Part (B) of this 
Subparagraph. Facilities with an incinerator that was operating on the date that required the 
owner or operator of the incinerator to apply for an air toxic permit which occurred before July 
L, 1993. if the facility does not have an air toxic permit for the entire facility, shall be included 
under Part (B) ot' this Subparagraph. 

(6) Previously Permitted Facilities. 

(A) A facility that received a permit to emit toxic air pollutants before July f, 1993, shall continue 
to operate under the terms of such permit. The emissions of toxic air pollutants resulting from 
construction, reconstruction, or modification of the facility will be regulated pursuant to 
Paragraph (b)(5)(B) of this Rule. 

(B) A facility that has received a permit to emit toxic air pollutants before July L, 1993. that is 
operating under a compliance schedule previously approved by the Director, and that will be 
subject to a MACT shall be required to comply with the terms of such compliance schedule 



2570 7:23 NORTH CAROLINA REGISTER March 1, 1993 



PROPOSED RULES 



unless the owner or operator of the facility demonstrates to the satisfaction of the Director that 
compliance requires substantial capital expenditures that may be rendered unnecessary when 
MACT is applied. Where such a demonstration is made, the owner or operator of the facility 
shall submit a permit application to comply with 15A NCAC 2D . 1 100 in accordance with 
Subparagraphs (b)(3). (4). or (5] of this Rule. 

f3^ Paragraph (Q)(l) of thi s Rule doc s not apply to sources whose emissions result from combusting 

only unadulterated fo ss il fuel s or unadulterated wood if the permit application i s only for this type 
of combustion source and if the facility has not already been permitted or applied for a permit to 
emit toxic air pollutants. 

f4) The owner or operator of any source other than s ources required to have a permit under Paragraph 

(a)(1) of this Rule shall have 180 days to app l y for a permit or permit modification for the 
emission s of toxic air pollutants after receiving written notification from the division. 

(5) When the director calls for permit applications for facilities pursuant to Paragraph (a)( 4 ) of this 

Rule, he shall call for permit applications on the ba s i s of standard industrial classifications, that is. 
he shall call at one time for permit s for all facilities statewide that have the same four digit s tandard 
industrial classification code, except those facilities located in certified local air pollution control 
agency area s . — All sources, regardless of their standard industrial classification code and including 
sources combusting only unadulterated fossil fuel s or unadulterated wood, at the facility s hall be 
included in the call for permit applications. — All members of a source or facility category not 
having a standard industrial classification code shall similarly be called at one time. 

i€j The owner or operator of a source required to obtain a p e rmit or permit modification before the 

date on which the guidelines in I5A NCAC 2D .110 4 (b) become effective shall be required to 
obtain the permit or permit modification only for toxic air pollutants named in 15A NCAC 2D 
. 1 10 4 (a). However, the owner or operator of the source will later be required in accordance with 
Paragraph (a)( 4 ) of this Rule to obtain permit modification s covering toxic air pollutant s named in 
15A NCAC 2D .110 4 (b). 

f?) Permit calls made under this Rule shall be limited to the emissions of toxic air pollutants. 

fb)(c) Demonstrations. The owner or operator of a source who is applying for a permit or permit 
modification to emit toxic air pollutants shall: 

(1) demonstrate to the satisfaction of the Director through dispersion modeling that the emissions of 
toxic air pollutants from the facility will not cause any acceptable ambient level listed in 15A 
NCAC 2D .1 104 to be exceeded; or 

(2) demonstrate to the satisfaction of the commission or its delegate that the ambient concentration 
beyond the premises (contiguous property boundary) for the subject toxic air pollutant will not 
adversely affect human health even though the concentration is higher than the acceptable ambient 
level in 15A NCAC 2D .1 104 by providing one of the following demonstrations: 

(A) the area where the ambient concentrations are expected to exceed the acceptable ambient levels 
in 15A NCAC 2D .1104 are not inhabitable or occupied for the duration of the averaging time 
of the pollutant of concern, or 

(B) new toxicological data that shows that the acceptable ambient level in 15A NCAC 2D .1 104 for 
the pollutant of concern is too low and the facility's ambient impact is below the level indicated 
by the toxicological data. 

{e)(d) Technically Infeasible and Economic Hardship. This Paragraph shall not apply to any incinerator 
covered under Section 15A NCAC 2D . 1200. The owner or operator of any source constructed before May 
1, 1990, who cannot supply a demonstration described in Paragraph (c} (b) of this Rule shall: 

fH s ubmit a compliance schedule acceptable to the Director that will reduce the s ubject toxic air 

pollutant ambient conc e ntration within three years after receiving written notification from the 
Director pursuant to Paragraph (a)( 4 ) of thi s Rule to a level that will not exceed any acceptable 
ambient level listed in I5A NCAC 2D .110 4 ; 
fS^ iJj demonstrate to the satisfaction of the commission or its delegate that complying with the 
guidelines in 15A NCAC 2D .1104 is technically infeasible (the technology necessary to reduce 
emissions to a level to prevent the acceptable ambient levels in 15A NCAC 2D . 1 104 from being 
exceeded does not exist); or 
{ij (2) demonstrate to the satisfaction of the commission or its delegate that complying with the 
guidelines in 15A NCAC 2D .1 104 would result in serious economic hardship. 



7:23 NORTH CAROLINA REGISTER March I, 1993 2571 



PROPOSED RULES 



^4) If the owner or operator makes a demonstration to the satisfaction of the commission or its delegate 
pursuant to Paragraph (e)(2) or (3) of thi s Rule Subparagraphs [_Q or i2j of this Paragraph , the Director shall 
require the owner or operator of the source to apply maximum feasible control. Maximum feasible control 
shall be in place and operating within three years from the date that the permit is issued for the maximum 
feasible control after rcociving written notification from the Director pursuant to Paragraph (a)( 4 ) of thia Rule . 

(e) Public Notice and Opportunity for Public Hearing. If the owner or operator of a source chooses to 
make a demonstration pursuant to Paragraph Subparagraph fb)(c)(2) or (d)(1) or (2) (c)(2) or (3) of this Rule, 
the commission or its delegate shall approve or disapprove the permit after a public notice with an opportunity 
for a public hearing. The public notice shall meet the requirements of Paragraph (d) of Rule .0603 of this 
Section. Any subsequent public hearing shall meet the requirements of Paragraph (e) of Rule .0603 of this 
Section except that the permit, if approved, shall not become part of the North Carolina State Implementation 
Plan for Air Quality. 

(f) Modeling Demonstration. If the owner or operator of a facility demonstrates by modeling that any toxic 
air pollutant emitted from his facility contributes an incremental concentration to the ambient air concentration 
of that pollutant beyond his premises which is less than the acceptable ambient level values given in 15A 
NCAC 2D . 1 104, he does not have to provide any further modeling demonstration with his permit application. 
However, the commission may still require more stringent emission levels in accordance with its analysis 
under 15A NCAC 2D .1107. 

(g) Exemptions. A permit to emit toxic air pollutants shall not be required for: 

(1) the noncommercial use of household cleaners, household chemicals, or household fuels in private 
residences; 

(2) asbestos demolition and renovation projects that comply with 15A NCAC 2D .0525 and that are 
being done by persons accredited by the Department of Environment, Health, and Natural 
Resources under the Asbestos Hazard Emergency Response Act; 

(3) emissions from gasoline dispensing facility or gasoline service station operations performed as a 
part of petroleum distribution to the ultimate consumer where the emissions comply with 15A 
NCAC 2D .0524, .0925, .0928, .0932 and .0933 and that receive gasoline from bulk gasoline 
plants or bulk gasoline terminals that comply with 15A NCAC 2D .0524, .0925, .0926, .0927, 
.0932, and .0933 via tank trucks that comply with 15A NCAC 2D .0932; 

(4) the use for agricultural operations by a farmer of fertilizers, pesticides, or other agricultural 
chemicals containing one or more of the compounds listed in 15A NCAC 2D .1104 if such 
compounds are applied in accordance with agronomic practices acceptable to the North Carolina 
Department of Agriculture and the Commission. 

(5) manholes and customer vents of wastewater collection systems; 

(6) emissions of ethylene oxide resulting from use as a sterilant in the production and subsequent 
storage of medical devices or the packaging and subsequent storage of medical devices for sale 
provided that the emissions from all new and existing sources located at the facility described in 
Paragraph (d) of 15A NCAC 2D .0538 are controlled at least to the degree described in Paragraph 
(d) of I5A NCAC 2D .0538 and the facility complies with Paragraphs (e) and (f) of 15A NCAC 
2D .0538. 

(7) emissions from bulk gasoline plants, including emissions from the storage and handling of fuel oils, 
kerosenes, and jet fuels but excluding emissions from the storage and handling of other organic 
liquids, that comply with 15A NCAC 2D .0524, .0925, .0926, .0932, and .0933 unless the 
Director finds that a permit to emit toxic air pollutants is required under this Rule for a particular 
bulk gasoline plant; 

(8) emissions from bulk gasoline terminals, including emissions from the storage and handling of fuel 
oils, kerosenes, and jet fuels but excluding emissions from the storage and handling of other 
organic liquids, that comply with 15A NCAC 2D .0524, .0925, .0927, .0932, and .0933 if the bulk 
gasoline terminal existed before November I, 1992. unless: 

(A) the Director finds that a permit to emit toxic air pollutants is required under this Rule for a 
particular bulk gasoline terminal, or 

(B) the owner or operator of the bulk gasoline terminal meets the requirements of I5A NCAC 2D 
.0927 (i). 

(h) Emission Rates Requiring a Permit. A permit to emit toxic air pollutants shall ftot be required for any 
facility whose actual emissions from all sources are no more than greater than any one £f the following: 



2572 7:23 NORTH CAROLINA REGISTER March 1, 1993 



PROPOSED RULES 



Ib/yr 



lb/day 



Ib/hr 



1 b/15 
min. 



(1) 


acetaldehyde 






(2) 


acetic acid 






(3) 


acrolein 






(4) 


acrylonitrile 


10 




(5) 


ammonia 






(6) 


ammonium chromed 




0.013 


(7) 


ammonium dichromate 




0.013 


(8) 


aniline 






(9) 


arsenic and inorganic 
arsenic compounds 


0.016 




(10) 


asbestos 


1.9x10-" 




(11) 


aziridine 




0.13 


(12) 


benzene 


8.1 




(13) 


benzidine and salts 


0.0010 




(14) 


benzo(a)pyrene 


2.2 




(15) 


benzyl chloride 






(16) 


beryllium 


0.28 




(17) 


beryllium chloride 


0.28 




(18) 


beryllium fluoride 


0.28 




(19) 


beryllium nitrate 


0.28 




(20) 


bis-chloromethyl 








ether 


0.025 




(21) 


bromine 






(22) 


1 ,3-butadiene 


12 




(23) 


cadmium 


0.37 




(24) 


cadmium acetate 


0.37 




(25) 


cadmium bromide 


0.37 




(26) 


calcium chromed 


0.0056 




(27) 


carbon disulfide 




3.9 


(28) 


carbon tetrachloride 


460 




(29) 


chlorine 




0.79 


(30) 


chlorobenzene 




46 


(31) 


chloroform 


290 




(32) 


chloroprene 




9.2 


(33) 


chromic acid 




0.013 


(34) 


chromium (VI) 


0.0056 




(35) 


cresol 






(36) 


p-dichlorobenzene 






(37) 


dichlorodifluoromethane 




5200 


(38) 


dichlorofluoromethane 




10 


(39) 


di(2-ethylhexyl) 








phthalate 




0.63 


(40) 


dimethyl sulfate 




0.063 


(41) 


1 ,4-dioxane 




12 


(42) 


epichlorohydrin 


5600 




(43) 


ethyl acetate 






(44) 


ethylenediamine 




6.3 


(45) 


ethylene dibromide 


27 




(46) 


ethylene dichloride 


260 




(47) 


ethylene glycol 








monoethyl ether 




2.5 



1.7 

0.24 

0.005 

0.17 



0.25 



0.13 



0.013 



0.057 



0.89 



0.56 



4.2 



36 
0.64 



0.48 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



2573 



PROPOSED RULES 



(48) 


ethylene oxide 


1.8 


(49) 


ethyl mercaptan 




(50) 


fluorides 




(51) 


formaldehyde 




(52) 


hexachlorocyclo- 
pentadiene 




(53) 


hexachlorodibenzo- 






p-dioxin 


0.0051 


(54) 


n-hexane 




(55) 


hexane isomers 
except n-hexane 




(56) 


hydrazine 




(57) 


hydrogen chloride 




(58) 


hydrogen cyanide 




(59) 


hydrogen fluoride 




(60) 


hydrogen sulfide 




(61) 


maleic anhydride 




(62) 


manganese and compounds 




(63) 


manganese 
cyclopentadienyl 
tricarbonyl 




(64) 


manganese tetroxide 




(65) 


mercur)', alkyl 




(66) 


mercun,'. an,i and 
inorganic compounds 




(67) 


mercun,'. \apor 




(68) 


methyl chloroform 




(69) 


methylene chloride 


1600 


(70) 


methyl ethyl ketone 




(71) 


methyl isobutyl ketone 




(72) 


methyl mercaptan 




(73) 


nickel carbonyl 




(74) 


nickel metal 




(75) 


nickel, soluble 
compounds, as nickel 




(76) 


nickel subsulfide 


0.14 


(77) 


nitric acid 




(78) 


nitrobenzene 




(79) 


N-nitrosodimethylamine 


3.4 


(80) 


pentachlorophenol 




(81) 


perchloroethylene 


13,000 


(82) 


phenol 




(83) 


phosgene 




(84) 


phosphine 




(85) 


polychlorinated 






biphenyls 


5.6 


(86) 


potassium chromate 




(87) 


potassium dichromate 




(88) 


sodium chromate 




(89) 


sodium dichromate 




(90) 


strontium chromate 


0.0056 


(91) 


styrene 




(92) 


sulfuric acid 




(93) 


tetrachlorodibenzo- 






p-dioxin 


0.00021 



0.34 



0.013 



23 



0.013 

2.9 
0.63 

0.25 
0.63 



0.013 

0.13 

0.0013 

0.013 
0.013 
250 

78 

52 

0.013 
0.13 

0.013 



0.063 



0.052 



0.025 
0.064 



0.0025 



0.28 



0.025 



0.013 



0.13 

0.0064 

0.24 



0.013 




0.013 




0.013 




0.013 






2.7 


0.25 


0.025 



0.010 



23 

0.045 

0.016 
0.13 



16 

5.6 

1.9 



0.064 



0.008 



2574 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



(94) 


1,1,1 ,2-tetrachloro- 




2,2-difluoroethane 


(95) 


1,1,2,2-tetrachloro- 




1,2-difluoroethane 


(96) 


1,1,1,2-tetrachloro- 




ethane 


(97) 


toluene 


(98) 


toluene-2,4-diisocyanate 


(99) 


trichloroethylene 


(100) 


trichlorofluoromethane 


(101) 


1,1,2-trichloro- 




1 ,2,2-trifluoroethane 


(102) 


vinyl chloride 


(103) 


vinylidene chloride 


(104) 


xylene 


(105) 


zinc chromate 



430 



4000 



1100 



100 



98 
0.011 



26 



2.5 
57 



140 



3.6 
0.001 



60 



4.1 



0.0056 

£i) Calls by the Director. Notwithstanding any other provision of this Rule or 15A NCAC 2D .1 104, the 
Director may, upon written Finding that a source or facility emitting toxic air pollutants presents an 
unacceptable risk to human health that will not otherwise be addressed in a timely manner, require the owner 
or operator of the source or facility to submit a permit application to comply with 15A NCAC 2D . 1 100. 

Statutory Authority G.S. 143-215. 3(a)il); 143-215.108; 143B-282. 









CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 



ISotice /.v hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
.sources Commission intends to amend rule cited as 
15A NCAC IOC .0107. 

1 he proposed effective date of this action is July 
1. 1993. 

1 he public hearing will be conducted at 7:00 
p.m. on April 5, 1993 at the First Floor Confer- 
ence Room, Archdale Building, 512 North Salis- 
bury^ Street. Raleigh, NC 27604-1188. 

txeason for Proposed Action: To provide consis- 
tency in the regulation of striped bass by Marine 
Fisheries and the Wildlife Resources Commission. 

l^omment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
March 1. 1993 to April 5, 1993. Such written 
comments must be delivered or imiiled to the N. C. 
Wildlife Resources Commission , 512 North Salis- 
bury Street. Raleigh, NC 27604-1188. 



SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0100 - JURISDICTION OF 

AGENCIES: CLASSIFICATION OF 

WATERS 

.0107 SPECIAL REGULATIONS: JOINT 
WATERS 

In order to effectively manage all fisheries 
resources in joint waters and in order to confer 
enforcement powers on both fisheries enforcement 
officers and wildlife enforcement officers with 
respect to certain rules; the Marine Fisheries 
Commission and the Wildlife Resources Commis- 
sion deem it necessary to adopt special rules for 
joint waters. Such rules supersede any inconsistent 
rules of the Marine Fisheries Commission or the 
Wildlife Resources Commission that would other- 
wise be applicable in joint waters under the provi- 
sions of I5A NCAC IOC .0106: 

(1) Striped Bass 

(a) It shall be unlawful to possess any 
striped bass or striped bass hybrid taken 
by any means which is less than 18 
inches long (total length). 

(b) It shall be unlawful to possess more 
than three striped bass or their hybrids 
taken by hook and line in any one day 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2575 



PROPOSED RULES 



from joint waters. 

(c) It shall be unlawful to engage in net 
fishing for striped bass or their hybrids 
in joint waters except as authorized by 
duly adopted regulations of the Marine 
Fisheries Commission. 

(d) It is unlawful to possess striped bass or 
striped bass hybrids in the joint waters 
of Albemarle, Currituck, Roanoke and 
Croatan Sounds and their tributaries, 
excluding the Roanoke River, except 
during seasons as authorized by duly 
adopted rules of the Marine Fisheries 
Commission. 

(e) It is unlawful to possess striped bass or 
striped bass hybrids In the joint waters 
of the Roanoke River and its tributar- 
ies, including Cashie. Middle and 
Eastmost Rivers, striped bass and 
hybrid striped bass fishing season, size 
limits and creel limits shall be the same 
as those established by except during 
seasons as authorized by duly adopted 
rules of the Wildlife Resources 
Commission for adjacent inland fishing 
waters . 

(2) Lake Mattamuskeet 

(a) It shall be unlawful to set or attempt to 
set any gill net in Lake Mattamuskeet 
canals designated as joint waters. 

(b) It shall be unlawful to use or attempt to 
use any trawl net or seines in Lake 
Mattamuskeet canals designated as joint 
waters . 

(3) Cape Fear River. It shall be unlawful to 
use or attempt to use any net or net 
stakes within 800 feet of the dam at Lock 
No. 1 on Cape Fear River. 

Statuwry Authority G.S. 113-132: 113-134: 
113-138: 113-292. 

ISotice is hereby i;iven in accordance with G.S. 
150B-21.2 that the N. C. Wildlife Resources 
Commission intends to amend rules cited as 15.4 
NCAC IOC .0108 and .0205. 

1 he proposed effective date of this action is July 
1. 1993. 

Instructions on How to Demand a Public Hearing; 



imust he requested in writing within 15 days of 
notice): A request for a public hearing must be in 
writing and must be submitted to Charles 
Fullwood, E.xecutive Director. Wildlife Resources 
Conmiission. 512 North Salisbury Street. Raleigh, 
NC 27604-1188. 



Reason for Proposed Actions: 15A NCAC IOC 
.0108 - To change the reference to another 
administrative rule and to incorporate the same by 
reference. 15A NCAC WC .0205 - To designate 
an Ashe County lake as delayed harvest trout 
water. 

l^onunent Procedures: Interested persons may 
present their views in writing from March 1 . 1993 
to March 31 , 1993. Such written comtnents must 
be delivered or mailed to the N. C. Wildlife 
Resources Commission, 512 North Salisbury- 
Street, Raleigh. NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SL^CIL\PTER IOC - INLAND FISHING 
REGLXATIONS 

SECTION .0100 - JLTUSDICTION OF 

AGENCIES: CLASSIFICATION OF 

WATERS 

.0108 SPECIFIC CLASSIFICATION OF 
WATERS 

The several sounds and estuarine and tributary 
waters all or portions of which are specifically 
classified as inland, joint, or coastal fishing waters 
by agreement of the Marine Fisheries Commission 
and the Wildlife Resources Commission are listed 
in the regulations of the Marine Fisheries 
Commission under 15A NCAC 3^ .0200 -14A 
NCAC 3F .0200, eff e ctiv e January- 1, 1977. 
am e nd e d e ff e ctix' e Januar) ' 1. 1978. and January 1. 
19 8 1 , and such list and classification is 
incorporated herein by reference^ shall include any 
later amendments, and is made a part of this 
Section to the same extent as if the same were 
fully set forth herein. 



Statutory .Authority- 
113-134: 150B-14. 



G.S. 113-129: 113-132: 



SECTION .0200 - GENERAL 
REGLXATIONS 



2576 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



.0205 PUBLIC MOUNTAIN TROUT 
WATERS 

(a) Designation of F*ublic Mountain Trout 

Waters. On game lands located in western North 

Carolina certain waters are designated as public 

mountain trout waters and classified as wild trout 

waters or hatchery supported waters. For specific 

classifications see Subparagraphs (1) and (2) of 

Paragraph (a) of this Rule. Other streams, 

portions of streams, and bodies of water which are 

not located on game lands are designated within 

this Rule as public mountain trout waters and are 

classified as hatchery supported trout waters or 

wild trout waters. These waters are posted and 

lists thereof are filed with the clerks of superior 

court of the counties in which they are located: 

(1) Hatchery Supported Trout Waters. The 

hatchery supported public mountain 

trout waters are designated in this 

Subparagraph under the counties where 

located. Where specific watercourses 

are listed indentation indicates the 

watercourse named is tributary to the 

next preceding watercourse named and 

not so indented. The designation 

applies to the entire watercourse or 

impoundment named, including 

tributaries when on game lands, except 

as otherwise indicated in parentheses 

following the name. Other clarifying 

information may also be included 

parenthetically: 

(A) Alleghany County: 

New River (not trout water) 

Little River (Whitehead to McCann 
Dam) 

Crab Creek 

Brush Creek (except where posted 

against trespass) 

Little Pine Creek 

Big Pine Creek 

Little Glade Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

Waterfalls Creek (South Fork 

Little River)(except where posted 

against trespass) 

South Fork New River (not trout 

water) 

Prather Creek 

Cranberry Creek 

Piney Fork 



Meadow Fork 
Yadkin River (not trout water) 
Roaring River (not trout water) 

East Prong Roaring River (that 

portion on Stone Mountain State 

Park) Delayed Harvest 

Waters regulations apply. See 
Subparagraph (5) of Paragraph 
(a) of this Rule. 

Stone Mountain Creek 

(B) Ashe County: 

New River (not trout waters) 

North Fork New River (Watauga Co. 
line to Sharp Dam) 

Helton Creek (Virginia State line 

to New River) 

Big Horse Creek (SR 1361 bridge 

to Tuckerdale) 

Buffalo Creek (headwaters to 

junction of NC 194-88 and SR 

1131) 

Big Laurel Creek 

Three Top Creek (portion not on 

game lands) 

Hoskins Fork (Watauga County 

line to North Fork New River) 
South Fork New River (not trout 
waters) 

Cranberry Creek (Alleghany 

County line to South Fork New 

River) 

Nathans Creek 

Peak Creek (headwaters to Trout 

Lake, except Blue Ridge Parkway 

waters) 

Trout Lake (Delayed harvest 

regulations apply) 

Roan Creek 

North Beaver Creek 

South Beaver Creek (headwaters to 

Ashe Lake) 

Pine Swamp Creek (all forks) 

Old Fields Creek 

Call Creek (West Prong Old 
Fields Creek) 

Mill Creek (except where posted 

against trespass) 

(C) Avery County: 

Nolichucky River (not trout waters) 
North Toe River (headwaters to 
Mitchell County line, except where 
posted against trespass) 

Plumtree Creek 

Roaring Creek 

Squirrel Creek 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



25,77 



PROPOSED RULES 



Elk River (SR 1306 crossing to 
Tennessee State line) 
Elk River (Lees-McRae College 
boundary- line to NC 194 bridge at 
Heaton, except where posted 

against trespass) 
Catawba River (not trout water) 
Johns River (not trout water) 
Wilson Creek [not Hatchery 
Supported trout water, see 
Subparagraph (2) of Paragraph (a) 
of 

this Rule] 

Lost Cove Creek [not Hatchery 
Supported trout water, see 
Subparagraph (4) of Paragraph 
(a) of this Rule] 
Gragg Prong 
Webb Prong 
Buck Timber Creek [not 
Hatchery Supported trout water, 
see Subparagraph (2) of 

Paragraph (a) of this Rule] 
Car)' Flat Branch [not Hatchery 
Supported trout water, see 
Subparagraph (2j of Paragraph 
fa) of this Rule] 
Boyde Coffey Lake 
Archie Coffey Lake 
Linville River (Sloop Dam to Blue 
Ridge Parkway boundary line) 

Milltimber Creek 
Linville River [Land Harbor line 
(below dam) to Ben Aldridge line, 
except Bob Miller property] 
(D) Buncombe County: 

French Broad Ri\'er (not trout water) 
Big Ivy Creek (Ivy River) 
(Dillingham Creek to US 19-23 
bridge) 

Dillingham Creek (Corner Rock 
Creek to Big Ivy Creek) 
Stony Creek 
Mineral Creek 
Corner Rock Creek 
Reems Creek (Woodfm Watershed 
dam to US 19-23 bridge, except 
where posted against 

trespass) 
Swannanoa River (SR 2702 bridge 
near Ridgecrest to Sayles Bleachery 
in Asheville. except 

where posted against trespass) 
Bent Creek 

Lake Powhatan 



Cane Creek (headwaters to SR 3138 
bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout 
water) 

Henry Fork (lower Morganton 
watershed line downstream to SR 
1919 at Ivy Creek) 

Jacob Fork (Shinny Creek to 
lower South Mountain State 
Park boundan,') Delayed 

Harvest 

Regulations apply. See 

Subparagraph (a)(5) of this 
Rule. 
Johns River (not trout water) 
Parks Creek (not trout water) 
Carroll Creek (game lands 
above SR 1405) 
Linville River (first bridge on SR 
1223 below Lake James powerhouse 
to Muddy Creek) 

(F) Caldwell County: 
Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek (Phillips Branch to 
Browns Mountain Beach dam, 
except where posted against 

trespass) 

Estes Mill Creek (not trout 

water) 

Thorpe Creek (falls to NC 90 

bridge) 
Mulberry Creek (not trout water) 
Boone Fork (not Hatchery 
Supported trout water) 

Boone Fork Pond 

(G) Cherokee County: 
Hiwassee River (not trout water) 

Shuler Creek (headwaters to 

Tennessee line, except where posted 

against trespass) 

North Shoal Creek (Crane Creek) 

(headwaters to SR 1325) 

Persimmon Creek 

Davis Creek 

Bald Creek 
Beaver Dam Creek (lieadwaters to 
SR 1326 bridge) 
Valley River 

Hyatt Creek 

Webb Creek 

Junaluska Creek (bridge at U.S. 

Forest Service road 440. Section 



2578 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



No. 4, to Valley River) 
(H) Clay County: 

Hiwassee River (not trout water) 

Fires Creek (bear sanctuary line to 
SR 1300) 

Tusquitee Creek (headwaters to 
lower SR 1 300 bridge) 

Tuni Creek 
Chatuge Lake (not trout water) 
Shooting Creek (headwaters to US 
64 bridge at SR 1338) 
Hothouse Branch 
Vineyard Creek 
(I) Graham County: 

Little Tennessee River (not trout water) 
Calderwood Reservoir (Cheoah Dam 
to Tennessee State line) 
Cheoah River (not trout water) 
Yellow Creek 
West Buffalo Creek 
Santeelah Reservoir (not trout 
water) 

Santeelah Creek (Johns Branch to 
mouth) 

Huffman Creek (Little Buffalo 

Creek) 

Squalla Creek 

South Fork Squalla Creek 
Big Snowbird Creek (old railroad 
junction to mouth) 
Mountain Creek (game lands 
boundary to SR 1 138 bridge) 
Long Creek (portion not on 
game lands) 

Tulula Creek (headwaters to 
lower bridge on SR 121 1) 
Franks Creek 
Cheoah Reservoir 
Fontana Reservoir (not trout 
water) 

Stecoah Creek 
Sawyer Creek 
Panther Creek 
(J) Haywood County: 

Pigeon River (not trout water) 
Hurricane Creek 
Cold Springs Creek 
Jonathans Creek - lower (concrete 
bridge in Dellwood to Pigeon River) 
Jonathans Creek - upper [SR 1307 
bridge (west) to SR 1302 bridge] 
Hemphill Creek 

West Fork Pegion River 
(headwaters to Champion 
International property line) 



(K) Henderson County: 

Broad River (not trout water) 

Rocky Broad River (one-half mile 
north of Bat Cave to Rutherford 
County line) 

Green River - upper (mouth of Bob 
Creek to mouth of Rock Creek) 
Green River - lower (Lake Summit 
Dam to Polk County line) 

Camp Creek (SR 1919 to Polk 

County line) 

Big Hungry River 
Little Hungry River 
North Fork Mills River 
(L) Jackson County: 

Tuckasegee River (confluence with West 
Fork Tuckasegee River to bridge at 
Wilmot) 

Scott Creek (entire stream, except 
where posted against trespass) 

Buff Creek (SR 1457 bridge below 

Bill Johnson's place to Scott 

Creek) 

North Fork Scott Creek 
Savannah Creek (Headwaters to 
Bradley's Packing House on NC 1 16) 

Greens Creek (Greens Creek 

Baptist Church on SR 1730 to 

Savannah Creek) 
Cullowhee Creek (Tilley Creek to 
Tuckasegee River, except portion 
posted for Western Carolina 

University outdoor classroom) 
Bear Creek Lake 

Wolf Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this 

Rule] 

Wolf Creek Lake 

Balsam Lake 
Tanasee Creek [not Hatchery 
Supported trout water, see 
Subparagraph (2) of Paragraph (a) of 

this Rule] 

Tanasee Creek Lake 
West Fork Tuckasegee River (Shoal 
Creek to existing water level of Little 
Glenville Lake) 

Shoal Creek (Glenville Reservoir 

pipeline to mouth) 
(M) Macon County; 

Little Tennessee River (not trout water) 
Nantahala River (Nantahala Dam to 
Swain County line) Delayed Harvest 
Regulations apply to 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



2579 



PROPOSED RULES 



the portion from Whiteoak Creek 

to the Nantahala Power and Light 

powerhouse discharge canal. See 

Subparagraph (a)(5) of this Rule, 

Queens Creek Lake 

Roaring Fork Creek (game land 

boundary to mouth) 
Burningtown Creek 
CuUasaja River (Sequoah Dam to US 
64 bridge near junction of SR 1672) 

EUijay Creek (except where posted 

against trespass) 

Skitty Creek (not trout water) 
Cliffside Lake 
Cartoogechaye Creek (L'S 64 bridge 
to Little Tennessee River) 
Tessentee Creek (Nichols Branch to 
Little Tennessee River, except where 
posted against 

trespassing) 
Savannah River (not trout water) 

Big Creek (base of falls to Georgia 

State line) 
(N) Madison County: 

French Broad River (not trout water) 
Shut-in Creek 

Spring Creek (junction of NC 209 
and NC 63 to lower US Forest 
Service boundary line) 

Meadow Fork Creek 
Roaring Fork 
Little Creek 

Max Patch Pond 

Mill Ridge Pond 
Big Laurel Creek (Mars Hill 
Watershed boundary to Rice's Mill 
Dam) 

Shelton Laurel Creek (headwaters 

to NC 208 bridge) 

Big Creek (headwaters to lower 
game land boundary) 
Mill Creek 

Spillcorn Creek 

Puncheon Fork (Hampton Creek to 

Big Laurel Creek) 
(O) McDowell County: 

Catawba River (not trout water) 
Buck Creek (not trout water) 

Little Buck Creek (game land 

portion) 
Curtis Creek (fish barrier to US 70 
bridge) 

Newberry Creek (game land 

portion) 
North Fork Catawba Ri\er 



(headwaters to North Cove School, 
SR 1569) 

Armstrong Creek (Cato Holler line 
downstream to upper Greenlee 
line) 
Mill Creek (upper railroad bridge to 
Old Fort Dam, except where posted 
against trespass) 
(P) Mitchell County: 

Nolichucky River (not trout water) 
Big Rock Creek (headwaters to 
fishing club property above A.D. 
Harrel farm) 

Little Rock Creek (Green Creek 
Bridge to Big Rock Creek, except 
where posted against 
trespass) 
Cane Creek (SR 1219 to Nolichucky 
River) 

Grassy Creek (East Fork Grassy 
Creek to mouth) 

East Fork Grassy Creek 
North Toe River (Avery County line 
to SR 1121. Altapass Road) 
(Q) Polk County: 

Broad River (not trout water) 

North Pacolet River (Pacolet Falls to 
NC 108 bridge) 

Fork Creek (Fork Creek Church 
on SR 1128 to North Pacolet 
River) 

Big Fall Creek (portion above and 
below water supply reservoir) 
Green River (Henderson County line 
to mouth of Brights Creek) 
Little Cove Creek 
Cove Creek 

Camp Creek [Henderson County 
line (top of falls) to Green River] 
FuUoms Creek (SR 1 154 to Green 
River) 
(R) Rutherford County: 

Broad River (not trout water) 

Rocky Broad River (Henderson 
County line to head of rapids at 
Goose Pond Hole, except where 
posted against trespass) 
(S) Stokes County: 

Dan River (lower Flippin property line 
below SR 1416 to 2(X) yards downstream 
from end of SR 
1421) 
(T) Surrv' County: 

Yadkin Ri\er (not trout water) 

Ararat River (SR 1727 downstream 



2580 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



PROPOSED RULES 



to SR 1759) Delayed Harvest 
regulations apply. See 

Subparagraph (5) of Paragraph (a) 
of this Rule. 

Stewarts Creek (not trout water) 
Pauls Creek (Virginia State line 
to SR 1625) 
Fisher River (Cooper Creek) 
(Virginia State line to NC 89 
bridge) 

Little Fisher River (Virginia 
State line to NC 89 bridge) 
Merritt Creek 
(U) Swain County: 

Little Tennessee River (not trout water) 
Calderwood Reservoir (Cheoah Dam 
to Tennessee State line) 
Cheoah Reservoir 
Tuckasegee River (not trout water) 
Deep Creek (Great Smoky 
Mountains National Park boundary 
line to Tuckasegee River) 
Oconaluftee River (not trout water) 

Connelly Creek 
Alarka Creek 

Nantahala River (Macon County line 
to existing Fontana Lake water level) 
(V) Transylvania County: 

French Broad River (junction of west 
and north forks to US 276 bridge) 

Davidson River (Avery Creek to 
Ecusta intake) 

East Fork French Broad River 
(Glady Branch to French Broad 
River) 

Middle Fork French Broad River 
West Fork French Broad River (SR 
1312 and SR 1309 intersection to 
junction of west and north 

forks) 
Savannah River (not trout water) 
Horsepasture River (Jackson 
County line to existing Lake 
Jocassee water level) 
Thompson River (SR 1152 to 
South Carolina state line, except 
where posted against trespass) 
(W) Watauga County: 

New River (not trout waters) 

North Fork New River (headwaters 

to Ashe County line) 

South Fork New River (not trout 

water) 

Meat Camp Creek 
Norris Fork Creek 



Howards Creek (downstream from 
lower falls) 
Middle Fork New River (Lake 
Chetola Dam to South Fork New 
River) 
Yadkin River (not trout water) 

Stony Fork (headwaters to Wilkes 
County line) 

Elk Creek (headwaters to gravel pit 
on SR 1508, except where posted 
against trespass) 
Watauga River (SR 1559 to SR 1114 
bridge) 

Beech Creek 

Buckeye Creek Reservoir 
Coffee Lake 
Laurel Creek 

Cove Creek (SR 1233 bridge at 
Zionville to SR 1233 bridge at 
Amantha) 

Dutch Creek (second bridge on SR 
1 134 to mouth) 

Crab Orchard Creek 
Boone Fork (headwaters to SR 1562) 
(X) Wilkes County: 

Yadkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River 
(Bullhead Creek to Brewer's Mill 
on SR 1943) (Delayed harvest 
regulations apply to portion on 
Stone Mountain State Park) See 
Subparagraph (5) of Paragraph 
(a) of this Rule. 
Stone Mountain Creek 
(Alleghany County line to 
Bullhead Creek) 
Middle Prong Roaring River 
(headwaters to second bridge on SR 
1736) 
Harris Creek (end of SR 1716 to 
mouth) 

Pell Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout 
waters) 

Pike Creek 

Pike Creek Pond 
Reddies River (not trout water) 
Middle Fork Reddies River (Clear 
Prong) (headwaters to bridge on 
SR 1580) 

South Fork Reddies River 
(headwaters to NC 16 bridge) 
North Fork Reddies River 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2581 



PROPOSED RULES 



(Vannoy Creek) (headwaters to 
Union School bridge on SR 
1559) 

North Prong Reddies River 
(Darnell Creek) (downstream 
ford on SR 1569 to 
confluence 

with North Fork) 
Lewis Fork Creek (not trout water) 
South Prong Lewis Fork (headwaters 
to Lewis Fork Baptist Church) 
Fall Creek (except portions posted 
against trespass) 
Stony Fork Creek (headwaters to Mt. 
Zion bridge near intersection of SR 1 155 
and SR 1167) 
(Y) Yancey County: 

Nolichucky River (not trout water) 
Cane River (Cattail Creek to 
Bowlens Creek) 

Bald Mountain Creek (except 
portions posted against trespass) 
Indian Creek (not trout water) 
Price Creek (junction of SR 
1120 and SR 1121 to Indian 
Creek) 
South Toe Ri\er (Clear Creek to 
lower boundary' line of Yancey 
County recreation park except where 
posted against trespass) 
(2) Wild Trout Waters. All designated 
public mountain trout waters located on 
game lands are classified as wild trout 
waters unless classified otherwise. The 
trout waters listed in this Subparagraph 
are also classified as wild trout waters. 
On game lands all tributaries to wild 
trout Vvaters are also classified as wild 
trout waters. 

(A) Alleghany County: 
Ramey Creek (entire stream) 

(B) Ashe County: 

Big Horse Creek (Virginia State Line to 
SR 1361 bridge) Catch and 

Release/ Artificial Lures Only 

Regulations apply. See 

Subparagraph (a)(3) of this Rule. 

(C) Aver>' County; 

Birchfield Creek (entire stream) 
Cow Camp Creek (entire stream) 
CranberPy' Creek (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 



Rockhouse Creek (entire stream) 
South Harper Creek (entire stream) 
Wilson Creek (Catch and 
Release/ Artificial Lures Only 
Regulations apply. See Subparagraph 
(a)(3) 

of this Rule.) 

(D) Buncombe County: 

Carter Creek (game land portion) (Catch 
and Release/ Artificial Lures only 
regulations apply. See 

Subparagraph (3) of Paragraph {a) of 

this Rule. 

(E) Burke County: 

All waters located on South Mountain 
State Park, except the main stream of 
Jacob Fork between 

the mouth of Shinny Creek and the 
lower park boundan,' where delayed 
harvest regulations apply. See 

Subparagraph (5) of Paragraph (a) of 
this Rule. 

(F) Caldwell County: 

Buffalo Creek (headwaters to lower Dahl 
property line) 

Joe Fork (Watauga County line to falls) 
Rockhouse Creek (entire stream) 

(G) Jackson County: 

Gage Creek (entire stream) 

Tanasee Creek (entire stream) 

Whitewater River (downstream from 

Silver Run Creek to South Carolina 

State line) 

Wolf Creek (entire stream, except 

Balsam Lake and Wolf Creek Lake) 

(H) Mitchell County: 

Green Creek (headwaters to Green 

Creek Bridge, except where posted 

against trespass) 

Little Rock Creek (headwaters to Green 

Creek Bridge, except vihere posted 

against trespass) 

Wiles Creek (game land boundary to 

mouth) 

(I) Transylvania County: 

South Fork Mills River (entire stream) 
Whitewater River (downstream from 
Silver Run Creek to South Carolina 
State line) 

(J) Watauga County: 

Watauga River (Avery County line to 
SR 1559) 

Boone Fork (Blue Ridge Parkway 
boundary line to Watauga River) 
[Catch and Release Fly 



25S2 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



PROPOSED RULES 



Fishing Only regulations apply. 
See Subparagraph (4) of Paragraph 
(a) of this Rule.] 

Howards Creek (headwaters to 
lower falls) 
(K) Wilkes County: 

Big Sandy Creek (portion on Stone 

Mountain State Park) 

Garden Creek (portion on Stone 

Mountain State Park) 

Harris Creek and tributaries [portions on 

Stone Mountain State Park) [Catch and 

Release Artificial 

Lures Only regulations apply. See 
Subparagraph (4) of Paragraph (a) of 
this Rule.] 

Widow Creek (portion on Stone 

Mountain State Park) 
(L) Yancey County: 

Lickskillet Creek (entire stream) 

Middle Creek (game land boundary to 

mouth) 

Rock Creek (game land boundary to 

mouth) 

South Toe River (game land boundary 

downstream to Clear Creek) 
(3) Catch and Release/ Artificial Lures 
Only. Those portions of designated 
wild trout waters as listed in this 
Subparagraph, including tributaries 
except as noted, are further classified as 
Catch and Release/Artificial Lures Only 
waters. Only artificial lures having one 
single hook may be used. No fish may 
be harvested or be in possession while 
fishing these streams: 
Harris Creek and tributaries (portions 
on Stone Mountain State Park, Wilkes 
County) 

Big Horse Creek, excluding tributaries 
(Virginia state line to SR 1361 bridge, 
Ashe County) 

Three Top Creek (portion located on 
Bluff Mountain Game Lands, Ashe 
County) 

Wilson Creek (game lands portion, 
including tributaries, Avery County) 
Upper Creek, Yancey County 
Lower Creek, Yancey County 
Tuckasegee River including all 
tributaries above the Clarke property, 
Jackson County 
Flat Creek, Jackson County 
Carter Creek (game lands portion). 
Buncombe County 



(4) Catch and Release/ Artificial Flies Only. 
Those portions of designated wild trout 
waters as listed in this Subparagraph, 
including tributaries except as noted, 
are further classified as Catch and 
Release/Fly Fishing Only waters. Only 
artificial flies having one single hook 
may be used. No fish may be 
harvested or be in possession while 
fishing these streams: 

Boone Fork (portion between Blue 
Ridge Parkway boundary and the 
Watauga River, Watauga 

County) 
South Toe River (portion from the 
concrete bridge above Black Mountain 
Campground downstream 

to the game land boundary, 

excluding Camp Creek and Neals 

Creek, Yancey County) 
Lost Cove Creek (game land portion, 
excluding Gragg Prong and Rockhouse 
Creek, Avery 

County) 
Davidson River (headwaters to Avery 
Creek excluding Avery Creek, Looking 
Glass Creek, and 

Grogan Creek, Transylvania County) 

(5) Delayed Harvest. Those portions of 
designated Hatchery Supported Trout 
Waters as listed in this Subparagraph, 
excluding tributaries except as noted, 
are further classified as Delayed 
Harvest Waters. Between 1 March and 
the Friday before the first Saturday in 
June, inclusive, only artificial lures 
with one single hook may be used. No 
fish may be harvested or be in 
possession while fishing these streams 
during this time. On the first Saturday 
in June these streams revert to Hatchery 
Supported Waters regulations: 

Ararat River (SR 1727 downstream to 
SR 1759, Surry County) 
East Prong Roaring River (from 
Bullhead Creek downstream to the 
lower Stone Mountain State 

Park boundary, Wilkes County) 
Trout Lake (Ashe County) 
Jacob Fork (Shinny Creek to lower 
South Mountain State Park boundai-y, 
Burke County) 

Nantahala River (portion from 
Whiteoak Creek to the Nantahala Power 
and Light powerhouse 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2583 



PROPOSED RULES 



discharge canal, Swain County) 
(b) Fishing in Trout Waters 

(1) Hatchery Supported Trout Waters. It is 
unlawful to take fish of any kind by any 
manner whatsoever from designated 
public mountain trout waters during the 
closed seasons for trout fishing. The 
seasons, size limits, creel limits and 
possession limits apply in all waters, 
whether designated or not, as public 
mountain trout waters. Except in 
power reservoirs and city water supply 
reservoirs so designated, it is unlawful 
to fish in designated public mountain 
trout waters with more than one line. 
Night fishing is not allowed in most 
hatchery supported trout waters on 
game lands [see 15A NCAC lOD 
.0004(b)(1)]. 

(2) Wild Trout Waters. Except as 
otherwise provided in Subparagraphs 
(3) and (4) of Paragraph (a) of this 
Rule, the following rules apply to 
fishing in wild trout waters. 

(A) Open Season. There is a year round 
open season for the licensed taking of 
trout. 

(B) Creel Limit. The daily creel limit is 
four trout. 

(C) Size Limit. The minimum size limit 
is seven inches. 

(D) Manner of Taking. Only artificial 
lures having only one single hook 
may be used. No person shall possess 
live or preserved bait while fishing 
wild trout waters. 

(E) Night Fishing. Fishing on wild trout 
waters is not allowed between 
one-half hour after sunset and 
one-half hour before sunrise. 

Skimtory Aiitborhy G.S. 113-134: 113-272; 
113-292. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

iS otice is hereby i;iven in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rule cited as 16 NCAC 6E .0202. 

1 he proposed effective date of this action is July 
1. 1993. 



I he public hearing will be conducted at 9:30 
a.m. on March 18. 1993 at the State Board Room, 
7th Floor Education Bldg. , 301 North Wilmington 
Street, Raleigh, NC 27601-2825. 

tveason for Proposed Action: Tfie North Carolina 
Chiropractic Association has petitioned that the 
rule be amended to allow chiropracters to conduct 
physical examinations of student athletes. 

i^onvnent Procedures: Any interested person may 
submit written conunents through April 1 , 1993. or 
orally at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6E - STUDENTS 

SECTION .0200 - SCHOOL ATHLETICS 
AND SPORTS MEDICINE 

.0202 INTERSCHOLASTIC ATHLETICS 

(a) Only students in grades 7-12 may participate 
in interscholastic athletic competition. In order to 
qualify for public school participation, a student 
must meet the following requirements: 

(1) The student must meet the residence 
criteria of G.S. ll5C-366(a). The 
student may participate only at the 
school to which the student is assigned 
by the LEA. 

(2) The principal must have evidence of the 
legal birth date of the student. The age 
limits for students as of October 16 of 
each year are: 

(A) no older than age 18 for high school; 

(B) no older than age 16 for ninth grade 
or junior high; and 

(C) no older than age 15 for seventh or 
eighth grade. 

(3) In grades 9-12. the student must pass at 
least five courses each semester and 
meet promotion standards established 
by the LEA. In grades 7 and 8, the 
student must meet state and local pro- 
motion standards and maintain passing 
grades each semester. Regardless of 
the school organization pattern, a stu- 
dent who is promoted from the eighth 
grade to the ninth grade automatically 
meets the courses passed requirement 
for the first semester of the ninth grade. 



2584 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



PROPOSED RULES 



(4) The student must receive a mcdioal 
physical examination by a licensed 
medical doctor or licensed doctor of 
chiropractic each year (365 days). 

(5) The student may not participate after 
any of the following: 

(A) graduation; 

(B) becoming eligible to graduate; 

(C) signing a professional athletic con- 
tract; 

(D) receiving remuneration as a partici- 
pant in an athletic contest; or 

(E) participating on an all-star team or in 
an all-star game that is not sanctioned 
by the association of which the 
student's school is a member. The 
student is ineligible only for the 
specific sport involved. 

- (6) A high school student may participate 
only during the eight consecutive 
semesters beginning with the student's 
first entry into grade nine. 

(b) The SBE recognizes that the North Carolina 
High School Athletic Association (NCHSAA) has 
been organized and operates to enforce the SBE 
interscholastic athletic rules. The SBE supports 
the exercise of this function by the NCHSAA 
within the framework of SBE rules. 

(c) The NCHSAA may waive any eligibility 
requirement contained in this Rule, except the age 
requirement, if it finds that the rule fails to accom- 
plish its purpose or it works an undue hardship 
when applied to a particular student. 

(d) Each principal of a school which participates 
in interscholastic athletics must certify a list of 
eligible students for each sport. 

(e) The NCHSAA may adopt and impose penal- 
ties appropriate for the violation of this Rule at the 
high school level. The LEA which has jurisdiction 
over the school may impose additional penalties. 
LEAs or conferences may adopt and impose 
penalties at the middle and junior school levels. 

(f) The NCHSAA must receive approval from 
the SBE or its designee for any new, additional or 
revised iiile which it proposes for the governance 
of athletics. 

Srururon Aurhoriry G.S. I15C-47(4). 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

iSotice is hereby given in accordance with G.S. 
150B-21 .2 that the Board of Examiners of Electri- 



cal Contractors intends to amend rule cited as 21 
NCAC 188 .0701. 

1 he proposed effective date of this action is June 
1. 1993. 

1 he public hearing will he conducted at 12:30 
p.m. on April 7, 1993 at the North Raleigh Hilton. 
3415 Old Wake Forest Road, Raleigh, NC 27609. 

ixeascm for Proposed Action: To remove the 
impediment to license renewal when a reciprocal 
agreement is terminated. 

l^omment Procedures: Interested persons may 
present statements, orally, and in writing, at the 
public hearing or in writing prior to the hearing by 
nuiil to: Board of Examiners of Electrical Con- 
tractors. P. O. Box 18727, Raleigh. NC 27619, 
Attn: Robert L. Brooks. Jr. 

CHAPTER 18 - BOARD OF EXAMINERS 
OF ELECTRICAL CONTRACTORS 

SUBCHAPTER 18B - BOARD'S RULES FOR 

THE IMPLEMENTATION OF THE 

ELECTRICAL CONTRACTING LICENSING 

ACT 

SECTION .0700 - LICENSING 
RECIPROCITY 

.0701 GENERAL REQUIREMENTS 

(a) The Board may enter into formal reciprocal 
agreements with contracting licensing boards of 
other states whereby nonresident electrical contrac- 
tors licensed by the other state boards may obtain 
a North Carolina electrical contracting license 
without written examinations provided: 

(1) The applicant furnishes to the Board a 
written statement from his state licens- 
ing board certifying that he holds a 
current electrical contracting license 
issued by that board; 

(2) The proposed qualified individual for 
the applicant is the same individual who 
is duly qualified for the license current- 
ly issued to the applicant by his state 
licensing board; 

(3) The applicant files an application on a 
form provided by the Board requesting 
a license under the formal licensing 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



25S5 



PROPOSED RULES 



reciprocity agreement currently in effect 
between the Board and the applicant's 
state licensing board; 

(4) Except for the written examination 
requirement, the applicant furnished to 
the Board information satisfactorily 
\'erif\'ing to the Board that he meets all 
of the requirements in Sections .0200. 
.0300 and .0400 of this Subchapter 
applicable to the specific license classi- 
fication requested; and 

(5) The applicant furnishes to the Board his 
check or money order for the annual 
license fee as required in Rule .0404 of 
this Subchapter for the specific license 
classification requested. 

(b) The expiration date for each license issued 
under a formal reciprocal agreement shall be as 
prescribed in G.S. 87-44. 

(c) The renewal application due date and late 
filing penalty for a license issued under a formal 
reciprocal agreement shall be as prescribed in Rule 
.0405 of this Subchapter. 

fd-t — Each licen s e i ss ued under a s pecific formal 
reciprocal agreement shall not be renewed if the 
formal reciprocal agreement becomes in'ralid for 
any reason. 

(d) fefExact copies of all formal reciprocal 
agreements entered into by the Board shall be filed 
w ith the North Carolina Secretary of State and the 
North Carolina Attorney General. 

Sraruron- Aufhorin- G.S. 87-42: 87-50. 



2586 7:23 NORTH CAROLINA REGISTER March I, 1993 



RRC OBJECTIONS 



1 he Rules Review Cotmnission (RRC) objected to the following rules in accordance with G. S. 
143B-30.2{c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



CO\IlVIERCE 
Banking Commission 

4 NCA C 3F . 0402 - Required and Permissible Investments 
Departmental Rules 

4 NCAC IK .0103 - Eligible Applicants 

Agency Revised Rule 
4 NCAC IK .0204 - Discretionary Public Hearing by the Department 

Agency Revised Rule 
4 NCAC IK .0205 - Formal Application Procedures: Approval 

Agency Revised Rule 
4 NCAC IK .0206 - Formal Application Procedures: Denial 

Agency Revised Rule 
4 NCAC IK .0207 - Reimbursement of Extraordinary Expense 

Agency Revised Rule 
4 NCAC IK .0302 - Criteria for Making Necessary Findings 

Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

]5A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Environmental Management 

I5A NCAC 2H .0805 - Certification and Renewal of Certification 
Agency Revised Ride 
Rule Returned to Agency 
Agency Filed with OAH 

Governor's Waste Management Board 

15A NCAC I4C .0005 - Conditions for Grants 
Agency Revised Rule 

Solid Waste Management 

I5A NCAC I3B .0103 - General Conditions 
Agency' Revised Rule 

Wildlife Resources and Water Safety 

ISA NCAC 1 01 .0001 - Definitions 



RRC Objection 01/21/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



11/19/92 
12/17/92 
11/19/92 
12/17/92 
II/I9/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 
11/19/92 
12/17/92 



RRC Objection 11/19/92 

12/17/92 

RRC Objection 01/21/93 



RRC Objection 10/15/92 

RRC Objection 10/15/92 

11/19/92 

Eff. 12/21/92 



RRC Objection 12/17/92 
Obj. Removed 12/17/92 



RRC Objection 1 2/1 7/92 
Obj. Removed 12/17/92 



RRC Objection 10/15/92 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2587 



RRC OBJECTIONS 



A,i;cncy Responded 
Aficncy Responded 

HUMAN RESOURCES 

Medical .\ssistance 

10 NCAC 26D .0012 - Time LimUatkm 

Ai;enc\ Withdrew Rule 
10 NCAC 26N .0201 - Offer to Counsel 

Afiencx Withdrew Rule 

Mental Health: General 

10 NCAC 14K .0103 - Definitions 
Agency Revised Rule 

LXDEPEXDENT AGENCIES 



No Action 
No Action 



11/19/92 
12/17/92 



RRC Ojbeclion 12/17/92 
12/17/92 

RR C Objection 12/1 7/92 
12/17/92 



RRC Objection 12/17/92 
Ohj. Renwved 12/17/92 



N.C. Housing Finance Agency 



24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re. 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCAC 
No Re 
No Re 

24 NCA C 



IM . 0202 - Eliiiibility 



sponse fron. 
sponse fron\ 
IM .0204 
sponse fron: 
sponse fron: 
IM .0205 
pons e fron. 
■sponse from 
IM .0206- 
sponse fron. 
•sponse from 
IM .0301 
■sponse from 
■sponse fron] 
IM .0302 
■sponse from 
■sponse froir 
IM .0303 - 
•sponse from, 
•sponse from, 
IM .0306 
•sponse from 
•sponse from, 
IM .0401 
•sponse from. 



•sponse from Agency 



IM .0402 - 
•sponse from. 



•sponse from Ai;ency 



IM .0403 - 
sponse from, 
sponse from. 



Agency 
Agemy 

Selection Procedures 
Agency- 
.Agency 

Administration 
Agency 
.A gen ty 
Program Fees 
Agency 
Agency 

Goal and Objectives 
Agency 
Agency 

Eligibility Requirements 
Agency- 
Agency 

Tlireshdld Review Criteria 
Agency 
Agency- 
Funding Commitment 
Agency 
Agency- 

Goals and Objectives 
Agency- 



Eligibility Reijuirements 
Agency 



Tlireshold Review Criteria 

Agency 

Agency- 



IM .0404 - Ranking Criteria 



RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Act i em 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objection 
No Action 
No Action 
RRC Objecticm 



10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 
11/19/92 
12/17/92 
10/15/92 



2588 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



RRC OBJECTIONS 



No Response from Agency 
No Response from Agency 
24 NCAC IM .0405 - Agency Board Approval 
No Response from Agency 
No Response from Agemy 

INSURANCE 

Agent Services Division 

7 / NCA C 6A . 0802 - Licensee Requirements 
Agency Revised Rule 

Departmental Rules 

/ / NCA C 1 . 0432 - Manufactured Housing Board Hearings 
Agency Withdrew Rule 

Financial Evaluation Division 



No Action 11/ 19/92 

No Action 12/17/92 

RRC Objection 10/15/92 

No Action 11/19/92 

No Action 12/17/92 



RRC Objection 12/17/92 
Obj. Removed 12/17/92 



RRC Objection 1 2/1 7/92 
12/17/92 



11 NCAC llA .0602 - Licensure 
Agency Revised Rule 
Rule Returned to Agency 

Multiple Employer Welfare Arrangements 

/; NCAC 18 .0019 - Description of Forms 

Seniors' Health Insurance Information Program 

11 NCAC 17 .0005 - SHIIP Inquiries to Insurers and Agents 

LICENSING BOARDS AND COMMISSIONS 

Cosmetic Art Examiners 



RRC Objection 11/19/92 

RR C Objection 11/1 9/92 

12/17/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



21 NCAC 14L .0301 - Applicants Licensed as Teachers in Other States 

Agency Revised Rule 
21 NCAC 14L .0302 - Requirements for Obtaining a Teacher's License 

Agency Revised Rule 

General Contractors 

21 NCAC 12 .0901 - Definitions 

Agency Revised Rule 
21 NCAC 12 .0908 - Order Directing Payment from Fund 

Agency Revised Rule 
21 NCAC 12 .0910 - Limitations; Pro Rata Distribution 

REVENUE 

Individual Income, Inheritance and Gift Tax Division 

17 NCAC 3B .0401 - Penalties 
17 NCAC 3B .0402 - Interest 



RRC Objection 11/19/92 

Obj. Removed 12/17/92 

RRC Objection 11/19/92 

Obj. Removed 12/17/92 



RR C Objection 12/1 7/92 

Obj. Removed 12/17/92 

RR C Objection 12/1 7/92 

Obj. Retnoved 12/17/92 

RRC Objection 1 2/1 7/92 



RRC Objection 08/20/92 
RRC Objection 08/20/92 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2589 



RRC OBJECTIONS 



Individual Income Tax Division 



17 NCAC 6B .0107 - Extensions 

17 NCAC 6B .0115 - Additions to Federal Taxable Income 

17 NCAC 6B .0116 - Deductions from Federal TtLxable Income 

17 NCAC 6B .0117 - Transitional Adjustments 

1 7 NCA C 6B . 3406 - Refunds 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 



2590 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals , Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. Tlie North Carolina 
Department of Community Colleges and Tlw North Carolina Department of Administration, Respondent and 
Tfw University of Southern California, Intervenor-Respondent (92 DO A 0666). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina. 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina. William Cobey. as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment , Health, and Natural Resources, Respondents (91 EHR 0818). 



7:23 NORTH CAROLINA REGISTER March I, 1993 2591 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are avail-able 
upon request for a minimal charge h\ contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

Dec Department of Community Colleges OS? 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Enviromnent, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Anne Powers 

V. 

University of North Carolina at Chapel Hill 


91 OSP 0387 


Becton 


01/29/93 


Yadkin Nursing Care Center, Inc. 

V. 

DHR. Division of Facility Services, Licensure Section 


91 DHR 0393 
91 DHR 0801 


Gray 


02/01/93 


Harold G. Patterson 

V. 

Department of Correction 


91 OSP 1163 


Becton 


02/08/93 


Michael D. Harper 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1289 


Chess 


02/10/93 


James R. Shupe 

V. 

Criminal Justice Ed & Training Standards Commission 


92 DOJ 0277 


Morrison 


02/10/93 



2592 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ashraf G. Khalil 

V. 

NCSU-Physical Plant Division 


92 OSP 0601 


Morrison 


02/04/93 


Mary E. Nixon 

V. 

Department of Human Resources 


92 DHR 073 1 


Becton 


02/11/93 


Vivian A. Williams 

V. 

Department of Human Resources, Cherry Hospital 


92 OSP 0750 


Mann 


02/05/93 


Nancy R. Chandler (92-074-013-00) (92-074-014-00) 

V. 

Victims Compensation Commission 


92 CPS08I2 
92 CPS08I3 


Morgan 


02/10/93 


William R. Willis 

V. 

Division of Marine Fisheries 


92 EHR 0820 


Mann 


02/04/93 


G&G Enterprises, Inc. T/A After Hours Bar 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0956 


Becton 


02/01/93 


Judy Sue Davenport, T/A The Corner Store 

V. 

Alcoholic Beverage Control Commission 


92 ABC 1034 


Nesnow 


02/03/93 


Alcoholic Beverage Control Commission 

V. 

Y-Bhok Siu T/A O'Henry Food Mart, 
3105 Summit Avenue, Greensboro, NC 27405 


92 ABC 1075 


Chess 


02/10/93 


Christopher L. King 

V. 

Department of Correction 


92 OSP 1095 


Gray 


02/08/93 


Samuel T. Timmons 

V. 

DHR, Division of Social Services, CSE 


92 CSE 1 198 


Becton 


02/08/93 


Alcoholic Beverage Control Commission 

V. 

Alexander Woods t/a Woods" Save More Market 


92 ABC 1281 


Nesnow 


02/10/93 


Alcoholic Beverage Control Commission 

V. 

Partnership t/a Johnson's Mini Mart 


92 ABC 1283 


Nesnow 


02/09/93 


Rhonda J . Ray 

V. 

Harnett Correctional Institute 


92 OSP 1376 


Nesnow 


02/03/93 


Obira R. Griggs Sr. 

V. 

EHR, Division of Maternal & Child Health, Nutrition Svcs 


92 EHR 1757 


West 


02/11/93 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2593 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Juanita Davis 

V. 

Brunswick County Board of Education 


93 EDC 0018 


Nesnow 


02/01/93 


Kirnberiy J. Burchain 

V. 

Department of Social Services 


93 DHR 0062 


Gray 


02/10/93 



2594 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAYNE 



IN THE OmCE OF 

ADMINISTRATIVE HEARINGS 

92 OSP 0750 



VrVTAN A. WILLIAMS, 

Petitioner. 



NORTH CAROLINA DEPARTMENT OF 
HUMAN RESOURCES, CHERRY HOSPITAL, 

Respondent. 



RECOMMENDED DECISION 



This contested case was heard before Julian Mann, III, Chief Administrative Law Judge, on November 
23, 1992, at the Wayne County Community College, Goldsboro, Wayne County, North Carolina. The record 
closed in this contested case on December 23, 1992, with the Respondent's filing of its Proposed Findings 
of Fact, Conclusions of Law and Recommended Decision. 



For Petitioner: 



For Respondent: 



APPEARANCES 

W. Timothy Haithcock 

Barnes Braswell Haithcock & Warren, P. A. 

231 E. Walnut Street 

P. O. Drawer 7 

Goldsboro, North Carolina 27533-0007 

Attorney for Petitioner 

John R. Corne 

Special Deputy Attorney General 

N. C. Department of Justice 

P. O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 



ISSUE 

Whether or not there was just cause to dismiss Petitioner from her employment at Cherry Hospital 
for personal misconduct. 

WITNESSES 



For Petitioner: 



Annie Dixon 
Delores Hines 
Carl Sullivan 
Delores McNair 
Wilbert Evans 
Norma Teachey 
Olivia Patterson 



For Respondent: 



Patricia N. Williams 

Kathryn Forehand 

Vivian Williams, Petitioner 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2595 



CONTESTED CASE DECISIONS 



EXHIBITS 

For Petitioner: Petitioner's Exhibit #1, 2 and 3 

For Respondent: Respondent's Exhibit #2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 

and 16 

STIPULATIONS 

On November 23, 1992, the parties filed a Prehearing Order with the presiding Administrative Law 
Judge. Contained in the Prehearing Order are certain Stipulations. These Stipulations, in part, are set out 
below: 

"A. It is stipulated that all parties are properly before the court and the court has jurisdiction over 

the parties and of the subject matter. 

B. It is stipulated that all parties have been correctly designated that there is no question as to 
misjoinder or nonjoinder of the parties. 

C. In addition to the other stipulations contained herein, the parties hereto stipulate and agree 
as to the following undisputed facts: 

1. Petitioner has never been counselled, orally or in writing, or had she been 
reprimanded prior to February 14, 1992. 

2. As of February 14, 1992. Petitioner had 15 years, 3 months of uninterrupted 
State employment. 

3. At the time of her dismissal. Petitioner was a "permanent state employee" 
as that term is used in G.S. 126-29. 

4. Petitioner was a member of the nursing staff at Cherry Hospital. 

5. Petitioner worked second shift in 1 East Woodard, an ICF ward. 

6. Normally a Health Care Technician ("HCT") II would be on the second shift 
for February 14. 1992. 

7. On February 14, 1992. a HCT II was on duty in 1 East Woodard, however, 
the HCT II became ill and left duty at approximately 4:00 PM when Petitioner arrived on 
duty. 

8. Besides Petitioner, there was one other employee who normally works the 
3:15 - 1 1:45 PM shift who arrived at 5:50 PM. February 14, 1992. 

9. Petitioner had never been counselled or reprimanded regarding falsifying a 
unit document with regard to accountability of a patient or any other subject. 

10. The HCT II, or the person left in charge, normally makes all shift 
assignments to staff present that would include the Multipurpose Flow Sheet. 

11. At the time of her discharge. Petitioner was earning $18,325.00 and 
occupied a pay grade 56." 

Based upon the foregoing Stipulations and by the greater weight of the admissible evidence, which 



2596 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



by its nature required determination of witness credibility by observation of witness demeanor, the Chief 
Administrative Law Judge makes the following: 

FINDINGS OF FACT 

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this 
contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes. 

2. Petitioner is a resident of Goldsboro, Wayne County, North Carolina, and a permanent State 
employee as defined in G.S. 126-39. 

3. Cherry Hospital is a psychiatric hospital operated in the state system by Respondent and 
located in Goldsboro, Wayne County, North Carolina. 

4. On February 14, 1992, Petitioner was assigned to 1 East Woodard at Respondent hospital. 
The second shift begins at 3:15 p.m. and ends at 11:00 p.m. 

5. 1 East Woodard is a geriatric intermediate care facility/unit (ICF) which provides care for 
patients who are 65 years of age or older. These patients have various types of physical problems resulting 
from pathogenesis and are generally confused, disoriented, and require constant supervision by the staff 
assigned to 1 East Woodard. 

6. On February 14, 1992, 26 patients were assigned to 1 East Woodard. 

7. On February 14, 1992, Patricia N. Williams, R.N., held the position of Nurse Manager and 
was the supervisor of 1 East Woodard. Ms. Patricia N. Williams had supervised Petitioner from December, 
1991 until her dismissal on March 9, 1992. 

8. Respondent hospital's adopted policy concerning Patient Accountability which was in effect 
at all times relevant herein. This policy is contained in a policy notebook, one of which is located on 1 East 
Woodard. The Cherry Hospital Nursing Services Policy (Patient Accountability) in effect on February 14, 
1992, provides, in pertinent part: 

"Each patient shall be accounted for at least hourly, utilizing the patient accountability 
sheet... 

The responsibility for patient accountability shall be assigned on the daily technician 
assignment sheet by the charge technician or the lead nurse. 

Hourly checks will consist of: 

1. Looking at the patients who are on the ward. 

2. Noting patients who are out on OSPC, passes, clinics with a code to 
signify staff know where patients are at all times. 

The technician performing the check, initials the last block under the relevant time frame, 
clearly indicating that they performed the check and that it is accurate.'" 

9. The Patient Accountability Work Sheets are kept on a clipboard in 1 East Woodard. 



'The present patient accountability system does not require hourly verification if the patient is off the 
ward. (Petitioner's ExJiitbit #1) 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2597 



CONTESTED CASE DECISIONS 



10. Petitioner was aware of ttie Respondent's policy concerning Patient Accountability. There 
was a separate Patient Accountability Work Sheet for each patient on 1 East Woodard. 

1 1 . Respondent hospital had adopted a policy concerning Multi-Purpose Flow Sheets, which was 
in effect at all times relevant hereto. On February 14, 1992, Petitioner was aware of and understood the 
procedure for filling out the Multi-Purpose Flow Sheets. 

12. The purpose of the Multi-Purpose Flow Sheet is to document daily care and to monitor 
patients. Licensing surveyors look to the Multi-Purpose Flow Sheet as evidence that care has in fact been 
provided to patients at Cherry Hospital. The Multi-Purpose Flow Sheet is used to record and monitor patient 
vital signs which are essential in assessing the patient and are an important indicator of patient progress, 
response to medication, illness and treatment. Compliance with vital sign orders is necessary to render and 
to demonstrate appropriate care for a patient. There was a separated Multi-Purpose Flow Sheet for each 
patient on 1 East Woodard. The Multi-Purpose Flow Sheets become part of the patient's permanent record. 

13. The Multi-Purpose flow Sheet is also used to record meals, snacks and nutritional supplements 
required by each patient. The hours of sleep, bathing, oral care, hygiene, foot/nail care, skin care and bowel 
movements are also required to be recorded on the Multi-Purpose Flow Sheet. 

14. On February 14. 1992, Petitioner was aware of Respondent's policy concerning Multi-Pui-pose 
Flow Sheets and that initialing the Flow Sheet certified that the notations are correct and that the patient 
actually received the care indicated on the Flow Sheet. 

15. On September 25, 1991. Petitioner attended training which specifically covered the 
Respondent's policy concerning Multi-Purpose Flow Sheet protocol. 

16. The Multi-Purpose Flow Sheets are kept in a flow sheet book on the unit. 

17. The normal staffing for the second shift on 1 East Woodard was three Health Care 
Technicians (hereinafter "HCT"). 

18. On February 14. 1992. Petitioner arrived at 4:00 p.m. for her shift on 1 East Woodard. The 
HCT II assigned on the second shift for 1 East Woodard was Olivia Patterson. Ms. Patterson had become 
ill and left 1 East Woodard at the time Petitioner arrived. 

19. Eunice Hines, HCT I, was also assigned to second shift in 1 East Woodard. Ms. Hines 
reported to work at 5:1.5 p.m. on February' 14, 1992. 

20. Ms. Jackie Williams, HCT I, stayed over from the first shift until Ms. Hines arrived. 

21. Ms. Patricia Williams was on 1 East Woodard several times after 4:00 p.m. because of the 
staff shortage and to arrange staff coverage. Ms. Patricia Williams called in Margaret Jones, HCT I, to work 
overtime in order to bring 1 East Woodard up to the normal staffing level. 

22. Ms. Jones arrived at 6:00 p.m. on February 14, 1992. 

2.^. Beginning at 6:00 p.m. and through the end of the second shift, there were three HCT's on 

duty on 1 East Woodard which is the normal staffing level for 1 East Woodard. 

24. When coming on duty at 4:00 p.m., February 14, 1992, Petitioner voluntarily assumed the 
duties and responsibilities of filling out the Patient Accountability Work Sheets and the Multi-Purpose Flow 
Sheets for the patients on 1 East Woodard. 

25. At approximately 1:15 p.m., February 14. 1992. Cherry staff members had taken several 
patients from I East Woodard. including Narvella B. off the unit for a bus ride. 



2598 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



26. About 3:35 p.m., February 14, 1992, the bus returned to the area of 1 East Woodard where 
most of the patients were removed but Narvella B remained on the bus. Staff responsible for monitoring 
patients on the day trip did not notice that Narvella B remained on the bus after all others had exited. The 
bus was then parked behind the Cherry Hospital Therapeutic Center at approximately 4:00 p.m. 

27. Prior to February 14, 1992, Petitioner had many times been responsible for filling out the 
Patient Accountability Work Sheets and the Multi-Purpose Flow Sheets. During the three months prior to 
February 14, 1992, Petitioner had filled out Narvella B's Patient Accountability Work Sheets at least sixteen 
times and Narvella B's Multi-Purpose Flow Sheets at least seventeen times. 

28. When the third shift for I East Woodard came on duty at 1 1:30 p.m., February 14, 1992, 
HCT Ann Ezzell immediately discovered that Narvella B was missing. At 12:00 midnight, Narvella B was 
discovered alone in the unlocked bus parked behind the Cherry Hospital Therapeutic Center. Narvella B. 
complained that her hands were cold, but she did not have any other physical problems. 

29. During the second shift on 1 East Woodard, Petitioner initialed the Patient Accountability 
Work Sheet for Narvella B beside 4:00 p.m., 5:00 p.m., 6:00 p.m., 7:00 p.m., 8:00 p.m., 9:00 p.m., 10:00 
p.m., and 1 1 :00 p.m. 



30. Narvella B. had not been present on I East Woodard at any time while Petitioner was on 



duty. 



31. Petitioner, during her shift on February 14, 1992, did not see or attempt to locate Narvella 
B on I East Woodard. 

32. Neither Petitioner nor other health care technicians at Respondent's hospital with knowledge 
of Respondent's "Patient Accountability" policy (Respondent's Exhibit #2) always inteipreted the policy to 
mean an actual requirement of visually verifying the patient's presence every hour particularly during the 
periods of high work volume and before bed time. 

33. Patient accountability verification depended on the location of the patient. Some patients leave 
their rooms to go to sitting areas or to watch movies. Patients are not normally accounted for during these 
periods. 

34. The accountability sheets (Respondent's Exhibit #8) are not standardized forms as are the 
multi-pui-pose forms (Respondent's Exliibit #9) and provide no directions for completion. 

35. During the second shift on 1 East Woodard, Petitioner initialed the Multi-Purpose Flow Sheet 
for Narvella B certifying that Narvella B had been given skin care, Narvella B had had 240 cc of juice, 
Narvella B had eaten all of her meal and Narvella B had had a bowel movement. Each of the foregoing was 
certified to have actually occurred notwithstanding the fact that Narvella B had not been present on 1 East 
Woodard at any time while Petitioner was on duty. 

36. The entry of information on the patient Multi-Purpose Flow Sheets does not permit employees 
to assume that specific care has been provided to the patient without directly administering the care or 
confirming that such care has been provided. 

38. On this occasion. Petitioner implicitly relied on other employees when filling out the Patient 
Accountability Work Sheets. 

39. Had Petitioner performed her duties and responsibilities with respect to patient accountability 
and recording on the Multi-Purpose Flow Sheet at any time between 4:00 p.m. and 1 1:30 p.m. February 14, 
1992, Petitioner would have discovered that Narvella B was not present on 1 East Woodard. 

40. Petitioner knowingly made false entries on the Multi-Purpose Flow Sheet. 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2599 



CONTESTED CASE DECISIONS 



41 . On March 9, 1992, Petitioner was dismissed from employment at Cherry Hospital. The bases 
for dismissing Petitioner were the (a) falsification of the February 14, 1992 Patient Accountability Work Sheet 
for Narvella B certifying that she was present on the unit at 4:00 p.m. and each hour thereafter until 1 1 :00 
p.m. and (b) falsification of the February 14, 1992 Multi-FHirpose Work. Sheet for Narvella B certifying that 
she had been provided the noted care. 

42. Other of Respondent's employees received milder forms of disciplinary action as the result 
of Narvella B having been left on the bus on February 14, 1992. Petitioner was the only employee dismissed. 

43. Petitioner enjoyed a good reputation for honesty. Petitioner worked diligently for the patients 
and interacted well with them. Petitioner, in her 15 years of service, had never received any disciplinary 
action. 

44. Petitioner received a favorable performance evaluation for the period ending June 30, 1991 . 
(Petitioner's Exhibit #3) 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . At the time of her dismissal. Petitioner was a permanent state employee as that term is defined 
in G.S. 126-39 and was subject to the provisions of G.S. 126-35. 

2. G.S. 126-35 provides that a permanent state employee can only be dismissed for just cause. 
Where just cause is the issue. Respondent has the burden of proof. 

3. 25 NCAC IJ .0608(a) provides that a permanent state employee may be discharged without 
any prior warning for unacceptable personal conduct. See also North Carolina Office of State Personnel 
PERSONNEL MANUAL , section 9, p. 6. 

4. 25 NCAC IJ .0604(b) provides that personal conduct discipline is intended to be imposed for 
actions for which no reasonable person could, or should, expect to receive prior warnings. See also : North 
Carolina Office of State Personnel PERSONNEL MANUAL , section 9, p. 3. 

5. The manner in which Health Care Technicians actually accounted for patients on the wards 
was known or should have been known to Respondent's Nurse Supervisors in the wards. The actual 
accountability methods, as they differed from the policy's literal language, has substantial impact on the 
policy's interpretation. The undersigned cannot conclude as a matter of law that Petitioner's failure to make 
a visual accounting of each patient hourly resulted in a personal conduct violation which no reasonable person 
could or should expect prior warnings. Although Petitioner's failure to account for Narvella B was a serious 
error, it was an error or omission more in the nature of job performance than personal misconduct. 

6. There was not just cause to dismiss Petitioner for her errors and omissions in completing the 
accountability checksheet for Narvella B as this conduct was more in the nature of job performance. 

7. The entry of a false and erroneous certification as to the care given to Narvella B as 
evidenced by the Mulli-Purpose Flow Sheets is a personal conduct violation and is an action which no 
reasonable person could or should expect to receive prior warnings. Such falsification is just cause for 
dismissal pursuant to G.S. 126-35.^ 

8. Petitioner did not cause the absence of Narvella B from the ward on February 14, 1992. 



"Respondent's decision to discharge Petitioner for her actions are within Respondent's discretion, 
notwithstanding her prior job history. 



2600 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



Narvella B's absence was caused by the careless actions of other staff more directly accountable. Narvella 
B's continued absence was caused by the other staffs failure to correct their careless action; by the failure 
of the Respondent's patient accountability system which did not indicate that this patient was absent from the 
ward; and by the intervening actions of Petitioner in her failure to render care and properly document it on 
the Multi-Purpose Flow Sheet. 

9. Respondent has met its burden of proving that there was just cause for Respondent's 

disciplinary action taken against Petitioner based upon the false certification of care rendered to Narvella B 
as evidenced by the intentional and erroneous entries made on the Multi-Purpose Flow Sheet. 

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned 
makes the following: 

RECOMMENDED DECISION 

The decision to dismiss Petitioner should be upheld as being for just cause based upon the Petitioner's 
failure to render care and subsequent false certification of care for Narvella B as evidenced by the Multi- 
Purpose Flow Sheet. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 



This the 5th day of February, 1993. 



Julian Mann, III 

Chief Administrative Law Judge 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2601 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CARTERET 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 EHR 0820 



WILLIAM R. WILLIS. 

Petitioner, 



NORTH CAROLINA DIVISION OF MARINE 
FISHERIES, 

Respondent. 



RECOMMENDED DECISION 



This contested case was heard before Julian Mann, III, Chief Administrative Law Judge, on November 
20. 1992, in the Carteret County Courthouse, Beaufort, North Carolina. The record closed in this contested 
case on December 21, 1992, with the Respondent's filing of its Proposed Recommended Decision. 



APPEARANCES 



For Petitioner: 



William R. Willis (pro se) 

315 Salter Road 

Atlantic, North Carolina 28511 

Petitioner 



For Respondent: 



Timothy D. Nifong 

Assistant Attorney General 

N. C. Department of Justice 

P. O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 



ISSUE 

Whether or not Proposed Lease No. 9201 for shellfish cultivation meets the statutory criteria for 
approval of such leases as provided in G.S. 113-202. 

\MTNESSES 



For Petitioner: 



Gerald Malcolm Fulcher, 
William E. Smith 
William Jerry Nelson 
Melvin Thomas Styron 
Garland C. Fulcher 
John M. Martin 



Jr. 



For Respondent: 



Michael D. Marshall 

Jeffrey E. French 

Charles H. Peterson, Ph.D 

(expert witness in the area of shellfish research and management) 

William T. Hogarth 

Joseph Arthur Huber 



2602 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



CONTESTED CASE DECISIONS 



EXHIBITS 

For Petitioner: Exhibit #1 

For Respondent: Exhibit #1, 2, 5, 6, 7, and 9 

STIPULATIONS 

On or about the 20th day of November, 1992, at approximately 9:03 a.m., a Prehearing Conference 
Order was filed with the presiding Administrative Law Judge. Contained in the Prehearing Conference Order 
are certain Stipulations. These Stipulations, in part, are set out below: 

"5. In addition to the other stipulations contained herein, the parties stipulate and agree with 

respect to the following undisputed facts: 

a. The Shellfish Lease Application for Shellfish Lease No. 9201 satisfies ail 
technical and procedural requirements necessary to have a valid application as set out by 
statute and rule. 

b. The following shellfish public bottom leasing standards, as set out in G.S. 
1 13-202(a), are satisfied by proposed Shellfish Lease No. 9201: 

(1) The area leased must be suitable for the cultivation and 
harvesting of shellfish in commercial quantities (G.S. 1 1 3-202(a)( 1 ); 

(2) Cultivation of shellfish in the leased area will not impinge 
upon the rights of riparian owners (G.S. 1 13-202(a)(4); 

(3) The area leased must not include an area designated for 
inclusion in the Department's Shellfish Management Program (G.S. 113- 
202(a)(5); 

(4) The area leased must not include an area which the State 
Health Director has recommended be closed to shellfish harvest by reason 
of pollution (G.S. 1 l3-202(a)(6). 

c. The applicant for proposed shellfish lease No. 9201, Mr. Joseph W. Huber, 
including the area of this proposed lease, does not hold more than fifty (50) acres of public 
bottoms under Shellfish Cultivation Leases. 

e. The area of bottom applied for under Proposed Shellfish Lease No. 9201 is 
"as compact as possible" within the meaning of G.S. 113-202(e). 

f. The shoreline in the area of the proposed Shellfish Bottom Lease No. 9201 
is undeveloped." ^ 

Based upon the foregoing Stipulations and by the greater weight of the admissible evidence, which 
by its nature requires determination of witness credibility by observation of witness demeanor, the Chief 
Administrative Law Judge makes the following: 

FINDINGS OF FACT 



Reference is made to the Prehearing Conference Order for a complete list of all Stipulations not quoted 



above. 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2603 



CONTESTED CASE DECISIONS 



1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this 
contested case pursuant to Chapters 1 13 and 150B (Article 3) of the North Carolina General Statutes. 

2. The Petitioner is a citizen and resident of Atlantic, Carteret County, North Carolina. 

3. The Respondent is an agency of the State of North Carolina. 

4. Joseph A. Huber (hereinafter "Huber") is a citizen and resident of Atlantic, Carteret County, 
North Carolina. 

5. On or about the 25th day of March, 1992, Huber applied with Respondent to lease a certain 
shellfish bottom, identified by the Respondent as Proposed Lease No. 9201, containing in the original 
proposed lease 10 acres, more or less, located approximately 2.5 miles southwest of Drum Inlet on the west 
side of Core Banks, Carteret County, North Carolina, and more particularly depicted in Respondent's Exhibit 
#1 . Huber paid the application fee of $100.00. 

6. The purpose for Proposed Lease No. 9201 was to attempt to implement Huber's plan to use 
this site as a source of seed clams and seed oysters; to plant one million seed clams and/or oysters annually 
on each acre of the proposed lease; and to eventually harvest up to 700 bushels of shellfish per acre per year. 
(Respondent's Exhibit #1) 

7. Huber operates a clam hatchery in Atlantic, North Carolina. In that operation, Huber spawns 
clams to produce larvae, which are grown into seed clams. Mr. Huber's clam hatchery has a capacity to 
produce 20 million seed clams each year. (Respondent's Exhibit #1) 

8. Prior to applying for Proposed Lease No. 9201 in Eastern Core Sound, Huber attempted to 
find or lease a site on the mainland side of Core Sound near his existing Lease No. 8601 suitable for clam 
aquaculture. but Huber was unsuccessful in that search. 

9. Huber has in the past consistently and substantially exceeded the lease production 
requirements set out by MFC Rule for Shellfish Lease No. 8601. Huber has demonstrated an ability to 
successfully spawn, culture and "grow out" clams. He has established himself as one of the leading shellfish 
aquaculturists in the State of North Carolina. (Respondent's Exhibit #6) 

10. A productive lease, such as Proposed Lease No. 9201, benefits the public bottom by 
providing added broodstock and enhancing recruitment throughout the Sound. With declining natural shellfish 
populations, this broodstock enhancement is likely to become vital to maintaining recruitment on public 
bottom. (Respondent's Exhibit #5) 

1 1 . Clams mature sexually at one year of age and reproduce by releasing their gametes directly 
into the water column. Gametes and the larvae that ultimately result from fertilization are subject to tidal and 
other water currents and may be carried some distance before being deposited on the bottom. Fecundity 
increases with age. Clams grown on shellfish cultivation leases take three years to reach optimal harvest size 
and, therefore, will reproduce two or three times prior to being harvested. The state clam fishery benefits 
from the gametes and clam larvae that are produced by clams on a shellfish cultivation lease because they are 
then transported offsite by tidal currents and deposited on non-leased public bottoms. 

12. On or about May 1, 1992, biologist Stan Sherman. Technician Steve Shelton and Jeffrey 
French, supervisor, conducted an investigation of Proposed Shellfish Bottom Lease No. 9201. Shellfish 
sampling is conducted as part of the Respondent's site investigation. The sampling methodology used was 
accomplished by the three investigators using hand rakes to take a total of 105 square meter bottom samples 
distributed approximately evenly across the lease. Sampling was completed in about one and one-half hours. 
(See Respondent's Exhibit #2) 

13. A total of 15 clams v\ere collected during sampling consisting of two littleneck clams, one 



2604 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



cherrystone clam, and twelve chowders. 

14. Based on the number of clams collected in the sampling survey when considered in proportion 
to the total area of the proposed lease, shellfish density for the Proposed Lease No. 9201 is 1.4 bushels per 
acre. 

15. The size of Proposed Lease No. 9201 , as originally submitted by the applicant, was 10 acres. 
Following comments at a public hearing held in Carteret County for this proposed shellfish lease, significant 
public clamming activity was found to have occurred around the periphery of the proposed lease site. The 
Respondent approved the proposed lease at the reduced size of seven acres in order to exclude an 
approximately 50 foot buffer around its edge. The outer areas contained approximately two bushels per acre 
based upon Respondent's estimation. The outer areas were precluded from the original lease. 

16. The term "natural shellfish bed" is defined in G.S. 113-201. 1(a) as: "...an area of public 
bottom where oysters, clams, scallops, mussels or other shellfish are found to be growing in sufficient 
quantities to be valuable to the public." 

17. 15A NCAC 30. 0201(a)(1)(A) defines "natural shellfish bed" to mean: "...ten bushels or 
more of shellfish per acre. " 

18. The present 10 bushel per acre leasing standard was derived from the historical leasing 
standard which stated that an area wherein a person "can make a days work" could not be leased. In prior 
history, each coastal county had an appointed "Oysterman", who, among other duties, conducted the State 
shellfish lease investigations for proposed leases to determine if he could make a days work at the proposed 
lease site. Over time. Respondent took samples to determine what quantities of shellfish were present at sites 
the oysterman determined were not leasable because he could make a days work there. From that sampling 
it was determined that, on average, the oysterman could make a days work when the site contained 10 or more 
bushels of shellfish per acre. That quantity was subsequently codified in Rule 15A NCAC 30. 0201(a)(1)(A) 
(January 1, 1991). (Respondent's Proposed Finding of Fact #14) 

19. The standard of 10 bushels per acre established as the production measure to determine 
"sufficient quantities to be valuable to the public" has been the standard for at least 15 years. 

20. Opinion as to what is a "days work" and therefore is a quantity shellfish sufficient to be 
valuable to the public, varies widely among and between both commercial fishermen and state regulators. 
(Respondent's Proposed Finding of Fact #15) Significant numbers of commercial shellfishermen clam in Core 
Sound along the western edge of Core Banks. On average. Core Banks clammers take an average of about 
400 to 600 clams, or about one bushel of clams or slightly more per day. 

21. Under the 10 bushel per acre standard, incomplete Respondent's survey data results indicate 
that as much as 70% of North Carolina's submerged coastal bottoms contain less than 10 bushels per acre and 
are therefore subject to leasing under the Shellfish Leasing Program, assuming that the other (statutory) 
criteria are met. The Marine Fisheries Commission is presently, through its Shellfish Committee, reexamining 
the 10 bushel per acre leasing standards for continuing viability. (Respondent's Proposed Findings of Fact #16) 

22. The stratified haphazard sampling method using hand rakes employed by the Respondent in 
its investigation of Proposed Lease No. 9201 is accepted and widely used within the scientific community 
as a valid means to sample submerged bottoms to determine shellfish densities because the results are both 
repeatable and appropriately reliable. 

23. Those portions of the lease vegetated by eel-grass could provide suitable scallop habitat and 
some commercial fishermen have harvested scallops from the general vicinity of the proposed lease area. 
However, Respondent's investigators found no evidence of scallops within the scattered eel-grass patches 
actually on the proposed lease site. 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2605 



CONTESTED CASE DECISIONS 



24. Conflicting testimony existed among the witnesses as to what was the appropriate standard 
as to the number of bushels of shellfish existing on a site per acre to be in sufficient quantities to be valuable. 

25. In Professor Peterson's (Respondent's expert witness) letter of June 25, 1992, he states: | 
" With declining natural shellfish populations , this broodstock enhancement is likely to become vital to 
maintaining recruitment on public bottom." (emphasis added) Shellfish populations in this area are declining. 
(Respondent's Exhibit #5) 

26. Inasmuch as Respondent determined that two bushels per acre of clams were likely to exist 
on the periphery of the original 10 acre lease and thus excluded that portion from the proposed lease to reduce 
its net size from 10 acres to 7 acres, it is deemed an admission by Respondent that 2 bushels per acre was 
"growing in sufficient quantities to be valuable to the public." 

27. The existence of 1 .4 bushels of shellfish per acre is not a sufficient quantity of shellfish to 
be a "natural shellfish bed." 

28. The standard of 10 bushels per acre found in 15A NCAC 30. 0201(a)(1)(A), is unclear and 
ambiguous to persons it is intended to direct, guide or assist and cannot be the standard by which "shellfish 
are found to be growing in sufficient quantities to be valuable to the public." 

29. No substantial evidence was offered to show that Proposed Lease No. 9201, standing alone, 
would significantly affect existing public recreational uses of the Core Banks area of Cape Lookout National ~ 
Seashore. 

30. Core Sound, which is located on the west side of Core Banks, provides a protected harvest 
area for commercial gill net and mullet net fishermen in Carteret County. The proposed lease site is neither 
unique nor significantly different from other locations on the west side of Core Banks. The use of the 
proposed lease for clam cultivation, including predator protection nets, will not substantially interfere with 
commercial fishing activities in Core Sound or along Core Banks. 

31. Navigational use of the proposed lease site is limited by the shallow depth of the water which 
is between I and 2.5 feet in depth. The proposed lease is offset from the shore 100 feet and extends east to 
west for only a portion of the width of the protected channel. In the area of the proposed lease there are 
existing potential hazards to navigation within the protected channel caused by private activities on the public 
bottom such as pound nets. 

32. Due to the width of the navigational channel, the relatively small area occupied by the 
proposed lease and the general unsuitability of the shallow waters overlying the site to intensive navigational 
use, the cultivation of shellfish on the proposed lease would not substantially affect either recreational or 
commercial navigation in the lease site area. 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. The Office of Administrative Hearings has jurisdiction over this contested case pursuant to 
Chapters 1 13 and 150B of the North Carolina General Statutes. 

2. Huber has affirmatively established the ability, based both on his knowledge and experience 
with clam culture and on his past performance, to utilize a clam lease larger than five acres in size, in 
satisfaction of the requirements set out in 15A NCAC 30 .0201 (a)( 1 )(C)(ii). 

3. Proposed Lease No. 9201 is and will be compatible with lawful utilization by the public of j 
other marine and estuarine resources. 



2606 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



4. By stipulation, which establishes a fact without further proof or offer of evidence, the 
statutory standards found in G.S. 1 13-202(a)( l)(4)t5)and (6) are conclusively established and are otherwise 
satisfied by Proposed Lease No. 9201. 

5. Respondent is charged under G.S. 1 13-202(e) to separate "an initial lease or amended initial 
lease... a sufficient distance from any known natural shellfish bed ..." (emphasis added). The Respondent by 
precluding the two areas of the outer limits of Proposed Lease No. 9201 containing 2 bushels of shellfish per 
acre is deemed an admission by Respondent that clams existing in numbers approaching 2 bushels per acre 
are a natural shellfish bed and are sufficient quantities to be valuable to the public under the provisions of G.S. 
113-201.1(3). 

6. Respondent's rule 15A NCAC 30 .0201(a)(1)(A) which purports to define "natural shellfish 
bed" is found to be unclear and ambiguous to persons it is intended to direct, guide or assist and, therefore, 
pursuant to the authority found in G.S. 1508-33(9), is declared void as applied in this contested case. 

7. 15A NCAC 30 .0201 also attempts to provide standards "in addition " to the standards in G.S. 
113-202 in defining a natural shellfish bed in subsection (I) and thereby 15A NCAC 30 .0201(a)(1)(A) is 
declared void as applied in this contested case upon the additional authority that the promulgator has exceeded 
its statutory authority by creating additional criteria that goes further than those criteria established in G.S. 
113-202. 

8. The substantial evidence in the record is that the bottom at Proposed Lease No. 9201 contains 
less than 2 bushels of shellfish per acre as established by scientific methodology. The Petitioner has made 
no showing of what quantity of shellfish per acre actually exists on the proposed lease site to challenge 
Respondent's determination. Respondent's determination of 1.4 bushels per acre is accepted as reliable 
evidence. 

9. Based upon Respondent's admission of 2 bushels per acre as the most reliable evidence of 
the numbers of shellfish existing per acre to constitute a natural shellfish bed, [(and not by Rule 15A NCAC 
30 .0201(a)(1)(A)], the existence of only 1.4bushels of clams per acre on Proposed Lease No. 9201 are not 
sufficient numbers existing to constitute a "natural shellfish bed" as defined in G.S. 1 13-201 . 1 ; and, therefore, 
the Proposed Lease No. 9201 cannot be defeated under the provisions of G.S. 1 13-202(a)(2). 

10. All of the statutory requirements for Proposed Lease No. 9201 are found to be present and 
therefore under the provisions of G.S. 1 13-202, the Respondent should issue Lease No. 9201 to Huber. 

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned 
makes the following: 

RECOMMENDED DECISION 

That the Marine Fisheries Commission affirm the recommendation of the Respondent and issue 
shellfish cultivation Lease No. 9201 to Joseph A. Huber, if the Commission finds that based on the record 
evidence approval of the proposed lease is in the public interest. Final lease approval should appropriately 
be conditioned, if necessary, to protect the public's interest as determined in the sound discretion of the 
Commission. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). Rule ISA NCAC 30 .0201(a)(1)(A) is declared void as applied in this contested case pursuant 
to G.S. 150B-33(a). 



7:23 NORTH CAROLINA REGISTER March I, 1993 2607 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Marine 
Fisheries Commission. 

This the 4th day of February, 1993. 



Julian Mann, III 

Chief Administrative Law Judge 



2608 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MECKLENBIIRG 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 ABC 1281 



N.C. ALCOHOLIC BEVERAGE CONTROL 
COMMISSION, 

Petitioner, 



ALEXANDER WOODS 
t/a WOODS' SAVE MORE MARKET, 
Respondent. 



RECOMMENDED DECISION 



The above-captioned matter was heard before Dolores O. Nesnow, duly-appointed Administrative Law 
Judge, on February 2, 1993, in Charlotte, North Carolina. 

STATEMENT OF THE CASE 

The hearing was called at 9:30 a.m. on February 2, 1993, as scheduled. At that time the parties 
informed the undersigned that they wanted a moment to discuss settlement. The undersigned allowed the 
parties five minutes after which they returned and announced that they had reached a settlement. 

Ten to twelve witnesses were present, including Charlotte police officers and a member of the 
community. Some of the witnesses wished to be heard. 

Mr. Height, attorney for the Commission, informed the undersigned that he did not have settlement 
authority and that the settlement terms would have to be before the Commission for their consideration. 

The undersigned then determined that the witnesses would be heard in order to fully present the facts 
and the settlement terms to the Commission. 

The witnesses were heard and the undersigned issued the Recommended Decision on the record at 
the conclusion of the testimony. 

On February 9, 1993, a Notice of Settlement and Withdrawal of Petition was filed by the Petitioner, 
purporting that the Petitioner had reached a settlement agreement by stipulation. 

That Notice did not include any information to indicate that a Commission meeting had occurred or 
that the Commission or the Chairman had agreed to the settlement. 

The Petitioner may wish to simply Withdraw its Petition, but there would then be no burden upon the 
Respondent to agree to any terms of settlement. 

This Withdrawal of Petition, however, is based upon a settlement which does not appear to have 
become final. This is, therefore, the same posture in which the case stood on the date of the hearing. 

As noted above, the undersigned offers this additional evidence to be presented to the Commission 
for a full and informed deliberation prior to their decision on the terms of the settlement. 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2609 



CONTESTED CASE DECISIONS 



APPEARANCES 



For Petitioner: 



For Respondent: 



Larry S. Height 

Chief Agency Legal Specialist 

N. C. ABC Commission 

P.O. Box 26687 

Raleigh. North Carolina 27611-6687 

Attorney for Petitioner 

William L. Stagg 

Attorney At Law 

Suite 323 

Law Building 

Charlotte. North Carolina 28202 

Attorney for Respondent 



ISSL'ES 

1. Did the Respondent's employee sell malt beverages to Joseph Lowr>'. a person less than 21 
years of age. on the licensed premises on or about July 31, 1992. at 2;25 p.m.. in violation of G.S. 18B- 
302(a)(1)? 

2. Did the Respondent's employee knowingly sell or gi\e alcoholic beverages to an intoxicated 
person on the licensed premises on or about August 7. 1992, at 4:30 p.m., in violation of G.S. 18B-305(a)? 

3. Did the Respondent's employee knowingly sell or give alcoholic beverages to an intoxicated 
person on the licensed premises on or about August 15. 1992, at 2:15 p.m., in violation of G.S. 18B-305(a)? 

4. Did the Respondent's employee knowingly sell or gi\e alcoholic beverages to an intoxicated 
person on the licensed premises on October 6, 1992, at 5:45 p.m.. in violation of G.S. 18B-305(a)? 

STATLTES AND RITLES IN ISSIT 

N.C. Gen. Stat. 18B-.^02(a)( 1 ) 
N.C. Gen. Stat. 18B-305(a) 
N.C. Gen. Stat. 18B-104(b) 

STTPIL.ATION AGREEMENTS 



The Respondent stipulates that the four violations which are being outlined as the Issues, above, are 



admitted. 



FINDINGS OF FACT 



1 . The Respondent holds the following permits issued by the North Carolina Alcoholic Beverage 
Control (ABCj Commission; 

Off premise malt beverage #I5268B 

Off premise fortified wine #15268F 

Off premise unfortified wine #15268D 

2. Woods' Save More Market is on Beatties Ford Road in Charlotte, North Carolina, and is 
operated by William David Jackson. 



3. 



Eleanor J. Washington lives nearby in I'niversity Park and passes the store frequentK'. 



2610 



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NORTH CAROLINA REGISTER 



March 1, 1993 



CONTESTED CASE DECISIONS 



4. People congregate outside Woods' Save More Market drinking openly. There are sometimes 
as many as fifteen people. 

5. There are schools nearby and school buses drive past the market on Beatties Ford Road. 

6. Ms. Washington has personally entered Woods' Save More Market and asked the operator 
to stop selling wine to the people who congregate outside. 

7. The operator responded that he had a license for many years and he would not stop selling 
wine to those people. 

8. Ms. Washington approached some of the people who congregate outside the store and asked 
if there was anything the community could do "to help them." Some of them replied that she could get them 
"sent to Broughton." 

9. Officer Andrew Kornberg, a Charlotte Police Officer, testified that he is assigned to the 
Charlie One District and is a "Community Police Officer" as pail of the program the City of Charlotte started 
six to eight months earlier. 

10. The program was started to facilitate communication and cooperative efforts between the 
communities and the police. 

1 1. Large group of people used to congregate both in front of Woods" Save More Market and 
the market across the street, which also held permits from the ABC Commission. 

12. On one occasion. Officer Kornberg talked to the people in the community about their concerns 
and they all expressed concern about the people congregating in front of Woods' Save More Market. 

13. Officer Kornberg testified that the people who stand in front of the market are drinking wine, 
throwing down glass bottles, and that there are drug dealers mingled in with the group. 

14. Officer Kornberg approached the operator of the store across the street from Woods" Save 
More Market in the summer of 1992. The store was at that time recently under new management. 

15. There is a large tree near the store across the street where the people used to congregate and 
Officer Kornberg observed that there was a great deal of debris under the tree, including broken glass and 
syringes. 

16. The new management of the store across the street cooperated with Officer Kornberg, hired 
a security officer, and changed the emphasis of sales away from the sale of wine. 

17. After that, the people stopped congregating near that store but continued to congregate near 
Woods' Save More Market. 

18. Officer Kornberg approached William Jackson, the operator of Woods' Save More Market 
and asked him to cooperate with the community efforts. Mr. Jackson said he would but there was no change 
in the people congregating in front of Woods' Save More Market. 

19. On one occasion, a news crew was filming the men congregated in that location and while 
the news crew was there, one of the men went to the side of the building and urinated. 

20. Officer Kornberg observed that the people would occasionally light fires in the area behind 
the Market to keep warm in cold weather. 

21. Officer Kornberg has spoken with Mr. Jackson on numerous occasions but has not observed 



7:23 NORTH CAROLINA REGISTER March I, 1993 2611 



CONTESTED CASE DECISIONS 



any change. 

22. Officer Kornberg does not know the hours when Woods' Market is open and there are no 
hours posted, but he has observed the gathering of people between 10:00 a.m. and 6:00 p.m. 

23. Respondent made an Offer and Compromise to the Commission which included admitting the 
charges outlined in the Issues and a 60 day suspension to be effective starting March 5. 1993, with the last 
30 days of the suspension suspended for a period of one year on the provision that the Respondent not further 
violate the ABC laws and regulations. 

CONCLUSIONS OF LAW 

1 . Respondent's employee sold alcoholic beverage to a minor, Joseph Lowry. on July 3 1 . 1992, 
at 2:25 p.m.. in violation of G.S. 18B-302(a)( I ). 

2. Respondent's employee knowingly sold or gave alcoholic beverages to an intoxicated person 
on the licensed premises on August 7, 1992, at 4:30 p.m.. in violation of N.C. Gen. Stat 
18B-305(a). 

3. Respondent's employee knowingly sold or gave alcoholic beverages to an intoxicated person 
on the licensed premises on August 15, 1992, at 2:15 p.m., in violation of N.C. Gen. Stat 
18B-305(a). 

4. Respondent's employee knowingly sold or gave alcoholic beverages to an intoxicated person 
on the licensed premises on October 6, 1992, at 5:40 p.m., in violation of N.C. Gen. Stat. 
18B-305(a). 

Based upon the foregoing Findings of Fact and Conclusions of Law. the undersigned makes the 
following: 

RECOMMENDATION 

It is recommended that the Commission not accept the Offer and Compromise as outlined above and 
that the Commission revoke the Respondent's permits. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administratixe 
Hearings. P.O. Drawer 27447. Raleigh. N.C. 2761 1-7447. in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to gi\'e each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic 
Beverage Control Commission. 



2612 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



This the 10th day of February, 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2613 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLLNA 



COUNTY OF RICHiMOND 



IN THE OFFICE OF 
ADiVDLNISTRATTSE HEARINGS 

92 EHR 1757 



OBIR.A R. GRIGGS SR. 

Petitioner, 

V. 

N. C. DEPARTMENT OF ENVIRONMENT. 
HEALTH AND NATLJRAL RESOLUCES. 
DIVISION OF MATERNAL AND CHILD HEALTH. 
NLTRITION SERVICES SECTION 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on Januan,' 28, 1993, in Raleigh, North Carolina by Administrative 
Law Judge. Thomas R. West. 

APPEAR.ANCES 

Petitioner appeared pro se. 

Respondent was represented by Assistant Attorney General, Belinda A. Smith 

EXHIBITS 
Exhibits listing has been omitted from this publication. It can be obtained by contacting this office. 

ISSUES 

1. Did Petitioner violate the administrative rules governing the WIC program in the manner set 
forth in the "Notice of Intent to Disqualify" issued December 2, 1992? 

2. If so, did Respondent act according to law by disqualif\'ing Petitioner from participation in 
the WIC program for a period of \}i5 days? 

BLTU)EN OF PROOF 

The burden is on Respondent, N. C. Department of Environment, Health and Natural Resources 
(hereafter "EHNR"), to prove, by the greater weight of the substantial exidence, that Petitioner acted in the 
manner alleged and that disqualification is the appropriate sanction. 

OFnCIAL NOTICE 

Official notice is taken of G.S. 130A-23 and 15A NCAC 2ID .0200-. 0806. 

STIPULATION 

The parties stipulated at the hearing of this case that the four (4) \iolations set forth in the "Notice 
of Intent to Disqualify" dated December 2, 1992 (Exhibit R7) did, in fact, occur. 

Based on the foregoing, and Petitioner's testimony, the undersigned finds the following to be the facts: 



2614 



7:23 



NORTH CAROLINA REGISTER 



March I, 1993 



CONTESTED CASE DECISIONS 



FINDINGS OF FACT 

1. Petitioner, Obira R. Griggs Sr. (hereafter "Griggs") entered into a WIC Vendor Agreement 
(Rl) on May 20, 1992. Respondent, EHNR, was a party to the Agreement and is charged 
with enforcing the laws governing the WIC program. 

2. The WIC Vendor Agreement (hereafter "Agreement") requires the following of WIC vendors 
in paragraph l(p): 

a. Vendor must stock two (2) icinds of infant formula-SMA with iron and Nursoy. A 
minimum inventory of sixty-two (62) thirteen (13) ounce cans must be in the 
Vendor's inventory; 

b. Vendors must stock a minimum inventory of six (6) fluid gallons of milk; 

c. All foods must be within the manufacturer's expiration date; 

d. Two (2) types of cheese must be stocked. 

3. On October 9, 1992, an inspector employed by EHNR visited Grigg's store to monitor 
Grigg's compliance with the WIC vendor agreement. The inspector found that Grigg's 
inventory of baby formula was fifty-four (54) cans rather than the minimum of sixty-two (62) 
required and that only one (1) kind of cheese was in stock. 

4. On October 9, 1992, the inspector completed a Vendor Monitoring Report (R2) stating the 
two deficiencies. The report states in paragraph (V)(B) that it "... serves as a warning ..."; 
that inspectors "... will be revisiting ... within two weeks to review [the] store's procedures 
and stock"; and that "[i]f the store is not in compliance at that time, it may be disqualified 
from the WIC Program." 

5. The Monitoring Report states as the "Vendor's plan and timeframe to correct deficiencies" 
that Griggs "Will pick-up goods today." 

6. On October 19, 1992, EHNR assessed Griggs five (5) points for failing to maintain a 
sufficient inventoiy. EHNR had done no reinspection, as it stated it would, to review 
Griggs' procedures and stock. 

7. On October 26, 1992, an inspector employed by EHNR visited Griggs' store to monitor his 
compliance with the WIC Vendor Agreement. The inspector found that Griggs had stocked 
only 4.5 gallons of fluid milk rather than the six (6) gallons required, and that one box of 
baby cereal in the store's inventory had expired. Griggs had in stock more than sixty-two 
(62) cans of formula of both varieties required. 

8. On October 26, 1992, the inspector issued a WIC Monitoring Report (R4) stating the 
deficiencies to Griggs and giving him the same warning stated in the Report dated October 
9, 1992. 

9. Griggs' stated plan and timeframe to correct the deficiencies was to "Pull cereal shelf off 
today. Milk will be in tomorrow morning." 

10. Eight (8) days later, on November 3, 1992, EHNR assessed Griggs 2.5 points for the expired 
cereal and 5 points for the insufficient inventory. 

11. On November 13, 1992, an inspector employed by EHNR visited Griggs' store to monitor 
compliance with the WIC Vendor Agreement (R6). Griggs had in stock twelve (12) gallons 



7:23 NORTH CAROLINA REGISTER March I, 1993 2615 



CONTESTED CASE DECISIONS 



of fluid milk; seven (7) pounds of cheese of two (2) varieties; all baby cereal was within the 
manufacturer's expiration date; and sixty-two (62) cans of SMA with iron baby formula were 
in stock. Griggs had no Nursoy. 

12. On November 13, 1992, the inspector issued a Vendor Monitoring Report stating that at least 
one thirteen (13) ounce can of Nursory must be stocked. Griggs' stated plan of correction 
was to pick up the Nursoy that day. 

13. The Monitoring Report stated the same warning and made the same commitment to a 
reinspection within two (2) weeks as the former reports. 

14. Nineteen (19) days later, EHNR disqualified Griggs from the WIC program for the violations 
on October 9. 1992, October 26, 1992 and November 13. 1992 (R7), EHNR performed no 
reinspection. 

15. On page ten (10) of the North Carolina WIC Vendor MANUAL, (R8) EHNR discusses 
"Vendor Monitoring." EHNR states that if problems are uncovered during a monitoring 
visit, "... the vendor must take steps to correct the problem(s). Failure to respond to a 
monitoring review is cause for disqualification from the WIC program." The visits are 
described as "... opportunities for vendors to receive training, discuss problems and ask 
questions." 

16. On page eleven (11) of the WIC manual, EHNR states that Vendors will be disqualified from 
the program if they have failed to meet the requirements of the vendor agreement or 

committed "... substantial violations " Failure to maintain minimum inventory is not 

listed as a substantial violation. 

ANALYSIS AND CONCLUSIONS OF LAW 



EHNR expects Griggs to hew to the written word of the Vendor Agreement. So, too, must EHNR 
adhere to the written word of its Vendor Monitoring Form and Vendor Manual. 

On October 9, 1992, EHNR discovered Griggs did not stock enough cans of baby formula and only 
stocked one kind of cheese. EHNR discussed a plan of correction, told Griggs in writing that it would be 
revisiting within two (2) weeks, and told him that if he was not in compliance at that time , the store may be 
disqualified. EHNR did not wait to determine if the plan of correction was successful. It assessed points ten 
(10) days later, seven (7) days before a reinspection. 

The reinspection on October 26, 1992 showed that Griggs had corrected the problem with the 
inventory of formula and cheese. This time, he was short a gallon and a half (1 1/2) gallon of milk and had 
one (1) box of expired cereal. Once again, a plan of correction was discussed, a promise of a reinspection 
made and an assessment of points made prior to the reinspection. 

A third inspection re\ealed no problems with the cheese, cereal, fluid milk inventor)', nor the number 
of cans of baby formula. This time Griggs had only one kind of formula rather than the tv\o required. A plan 
of correction was made, a promise of reinspection was made and, once again, points were assessed prior to 
reinspection. We have no knowledge as to whether Griggs corrected the problems by stocking the second kind 
of formula. 

The assessment of points made on October 19, 1992 is void. It was made contrary to the regulatory 
scheme of discovering problems WIC vendors are having and then allowing vendors two (2) weeks to correct 
them. The assessment is contrary to EHNR's written promise to Griggs. 

The assessment of points made on November 3, 1992 is void for the reasons stated above. 



2616 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CONTESTED CASE DECISIONS 



Most of the assessment of points on December 2. 1992 is void. The assessment of five (5) points for 
insufficient inventory on October 9, 1992 is now valid. On October 9, 1992, Griggs was told about the 
problems with his inventory of baby formula. Although he made a plan of correction and followed it, by 
November 13, 1992 he once again had insufficient inventory of formula. 

The assessments of points for insufficient inventory and expired foods on October 26, 1992 were void. 
The assessments were made prior to reinspection by EHNR. Reinspection on November 13, 1992 shows that 
Griggs complied with the plan of correction EHNR discussed with him. 

The assessment of points for insufficient inventory found at the November 13, 1992 inspection is void. 
The assessment of points was made prior to reinspection by EHNR. There is no evidence that Griggs failed 
to follow the plan of correction. 

As a result, Griggs has been assessed only five (5) points properly and his disqualification from the 
WIC program is erroneous. 

The WIC program, in its Vendor Manual and in its compliance inspection program, has established 
a system whereby vendors are disqualified if they fail to correct non-substantial violations. Vendors are not 
to be disqualified when they commit minor violations but correct them consistent with the plans of correction 
arrived at through discussion with WIC compliance inspectors. I urge the WIC program to follow the genius 
of its own enforcement program rather than engaging in a mechanistic enforcement scheme. 

Based on the foregoing, the undersigned makes the following: 

RECOMMENDED DECISION 

Petitioner shall not be disqualified from the WIC program. Griggs should be assessed five (5) points 
for failing to stock the minimum inventory of baby formula as pointed out to him on October 9, 1992 and as 
he himself acknowledged that he would. A WIC inspector should re-inspect Grigg's store to determine 
whether he has followed the plan of correction agreed to by EHNR and Griggs on November 13, 1992. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions and proposed findings of fact and to present oral and written arguments to the 
agency. G.S. 150B-40(e). 

A copy of the final agency decision or order shall be served upon each party personally or by certified 
mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished 
to his attorney of record. G.S. 150B-42(a). It is requested that the agency furnish a copy to the Office of 
Administrative Hearings. 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2617 



CONTESTED CASE DECISIONS 



The agency that will make the final decision in this contested case is the North Carolina Department 
of Environment, Health and Natural Resources. i 



This the 1 1th day of February, 1993. 



Thomas R. West 
Administrative Law Judse 



2618 7:23 NORTH CAROLINA REGISTER March 1, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four nuijor subdivisions of rules. Two cf these, 
titles and chapters, are mandatory^. Tfie major subdivision if the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to he used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 




Architecture 




2 


2 


Agriculture 




Auctioneers 




4 


3 


Auditor 




Barber Examiners 




6 


4 


Economic & Community 


Development 


Certified Public Accountant Examiners 


8 


5 


Correction 




Chiropractic Examiners 




10 


6 


Council of State 




General Contractors 




12 


7 


Cultural Resources 




Cosmetic Art Examiners 




14 


8 


Elections 




Dental Examiners 




16 


9 


Governor 




Dietetics/Nutrition 




17 


10 


Human Resources 




Electrical Contractors 




IS 


11 


Insurance 




Electrolysis 




19 


12 


Justice 




Foresters 




20 


13 


Labor 




Geologists 




21 


14A 


Crime Control & Public 


Safety 


Hearing Aid Dealers and Fitters 




22 


15A 


Environment, Health, and Natural 


Landscape Architects 




26 




Resources 




Landscape Contractors 




28 


16 


Public Education 




Marital and Family Therapy 




31 


17 


Revenue 




Medical Examiners 




32 


18 


Secretary of State 




Midwifery Joint Committee 




33 


19A 


Transportation 




Mortuary Science 




34 


20 


Treasurer 




Nursing 




36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 




37 


22 


Administrative Procedures 


Occupational Therapists 




38 


23 


Community Colleges 




Opticians 




40 


24 


Independent Agencies 




Optometry 




42 


25 


State Personnel 




Osteopathic Examination & Reg. 


(Repealed) 


44 


26 


Administrative Hearings 




Pharmacy 

Physical Therapy Examiners 




46 
48 








Plumbing, Heating & Fire Sprinkler Contractors 


50 








Podiatry Examiners 




52 








Practicing Counselors 




53 








Practicing Psychologists 




54 








Professional Engineers & Land Surveyors 


56 








Real Estate Commission 




58 








Refrigeration Examiners 




60 








Sanitarian Examiners 




62 








Social Work 




63 








Speech & Language Pathologists 


& Audiologists 


64 








Veterinary Medical Board 




66 



Note; Title 21 contains the chapters of the various occupational licensing boards. 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



2619 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 

966 - 1086 10 - August 

1087 - 1 154 11 - September 

1155 - 1253 12 - September 

1254 - 1350 13 - October 

1351 - 1463 14 - October 

1464 - 1640 15 - November 

1641 - 1720 16 - November 

1721 - 1828 17 - December 

1829 - 2059 18 - December 

2060 - 2215 19 - January 

2216 - 2381 20 - January 

2382 - 2484 21 - February 

2485 - 2546 22 - February 

2547 - 2623 23 - March 

ADMINISTRATION 

Administration's Minimum Criteria, 2396 

Auxiliary Services, 4 

Environmental Policy Act, 2385 

Low-Level Radioactive Waste Management Authority, 2391 

Motor Fleet Management Division, 794 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 

Markets Division, 2495 

Pesticide Board, 1276, 2549 

Plant Industry, 904, 2219, 2490 

Standards Division, 2490 

Structural Pest Control Committee, 332 

Veterinary Division, 342 

COMMERCE 

Cemetery Commission, 2398 

COMMUNITi^ COLLEGES 

Community Colleges, 1535 
General Provisions. 1531 
Miscellaneous Programs, 1598 

CULTURAL RESOURCES 

Archives and History, 2224 



2620 



7:23 



NORTH CAROLINA REGISTER 



March 1, 1993 



CUMULATIVE INDEX 



U.S.S. Battleship Commission. 911 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629, 1467 
Community Assistance, 909, 968 
Departmental Rules, 801 
Savings Institutions Division, 1833 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Management, 211, 655. 1098. 1507 

Departmental Rules, 826, 1852 

Environmental Health, 223, 2439 

Environmental Management, 190, 416, 500, 644, 830, 1013, 1487, 1856, 2086, 2308. 2438, 2567 

Governor's Waste Management Board, 564, 920, 1 197 

Health: Epidemiology, 140, 1212 

Health: Personal Health, 1217 

Health Services, 52, 659, 1174, 1736, 1985, 2141 

Marine Fisheries, 530 

NPDES Permits Notices, 1, 107 

Radiation Protection, 136, 1520, 1863, 2087 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission, 28, 133, 408, 449, 551, 921, 1299, 1414. 1658, 1736, 2575 

Wildlife Resources Commission Proclamation, 176, 2082 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793, 966, 1090, 1275, 1465, 1644, 1721, 2384 

GENERAL STATUTES 

Chapter 1 506, 1254, 2060 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 401,491, 626, 791,903, 1087, 1155, 1351, 1464, 1641, 1829,2081,2216,2382,2485, 
2547 

HUMAN RESOURCES 

Aging, Division of, 121, 346 

Blind, Services for the, 2551 

Day Care Rules, 123 

Departmental Rules, 2496 

Economic Opportunity, 5 

Facility Services, 111, 177, 496, 634, 980, 1352, 1647, 2404 

Medical Assistance, 4, 415, 496, 816, 989, 1156, 1295, 1391, 1649, 1723, 1842, 2083, 2228, 2552 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092, 1276, 

2225. 2550 
Social Services Commission, 183, 911, 1471, 2419 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450, 576, 928. 1219 
Safety and Health Review Board, 2190 

INSURANCE 

Actuarial Services Division. 1411, 2498 
Admission Requirements. 2304 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2621 



CUMULATIVE INDEX 



Agent Services Division, 1410 • 

Consumer Services Division. 125, 1157, 2239 

Departmental Rules, 7, 1095, 1405 i 

Engineering and Building Codes, 19, 643 \ 

Financial Evaluation Division, 1162. 1849, 2242 

Fire and Rescue Services Division, 17. 1406 

Hearings Division. 124. 1096 

Life and Health Division. 22, 347, 1167, 2300 

Market Conduct Division, 1850 

Medical Database Commission, 1650 

Property and Casualty Division, 20, 1848 

Seniors" Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189, 643, 919, 1414, 1486, 1732 
Criminal Infonnation, 1097 
Criminal Justice Standards Division, 2553 
General Statutes Commission, 353 
Private Protective Services, 918, 1731 

Sheriffs Education and Training, 990 ] 

State Bureau of Investigation, 188. 499, 1413 | 

1 
LABOR I 

OSHA. 2564 

LICENSLNG BOARDS 

Architecture, 1111 

Certified Public Accountant Examiners, 355 

Chiropractic Examiners. 1416 

Cosmetic Art Examiners. 360. 922. 1669. 2331. 2500 

Dietetics/Nutrition, 923 

Electrical Contractors. 1785, 2332, 2585 

Electrolysis Examiners, 69, 700. 2502 

Geologists, 1792 

Medical Examiners. 1304. 1417. 1987. 2441 

Mortuary Science, Board of, 2184 

Nursing. Board of, 232, 700, 1528, 2506 

Opticians, 1793 

Optometn,', 2338 

Pharmacy, Board of. 1418 

Professional Engineers and Land Surveyors. 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified, 72. 362. 452. 584. 1671. 23.52. 2508 . 

PUBLIC EDUCATION 

Departmental Rules, 1 108 

Elementary' and Secondary, 852. 1108. 1666. 2584 

re\t;nxe 

License and Excise Tax. 712 

Motor Fuels Tax, 361 I 



2622 7:23 NORTH CAROLINA REGISTER March 1, 1993 



CUMULATIVE INDEX 



STATE PERSONNEL 

Office of State Personnel, 237, 705, 1113, 1419, 2005 

TAX REVIEW BOARD 

Orders of Tax Review, 494 

TRANSPORTATION 

Highways, Division of, 228, 856, 1062, 1110, 1669, 1781 
Motor Vehicles, Division of, 68, 142 



7:23 NORTH CAROLINA REGISTER March 1, 1993 2623 



NORTH CAROLINA ADMINISTRATIVE CODE 



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